THE SUPREME COURT Background Only court mentioned in the Constitution (Article III) 8 Associate Justices and 1 Chief Justice Highest court in the land – the court of last resort Key powers: Power of judicial review (established by Marbury v. Madison, 1803) Power to interpret broadly-worded laws of Congress and the Constitution Power to overrule earlier Supreme Court decisions (e.g., Brown v. Board overturning Plessy v. Ferguson) Jurisdiction Original: in cases involving: States Ambassadors Appellate: in cases from: Courts of Appeals State supreme courts Cases from appellate jurisdiction are far more numerous than from original jurisdiction

How cases reach the Supreme Court Supreme Court controls its own docket Relatively few requests are granted. (80-90 per year) Rule of 4: Denying a decision may mean any number of things: Case lacks a substantial federal issue. Party lacks standing Court agrees with a lower court. Case is a “political hot potato” that the Court does not want to touch. Writ of certiorari (“to be made certain”). These petitions are screened by the Court’s law clerks, and then reviewed by the Justices on the rule of 4 basis noted above. Per curiam opinion. This is a very brief unsigned statement of the Court’s decision.

Written opinions: Types: Unanimous: expresses opinion of all nine Justices: ~ 1/3 of the cases are decided by a 9-0 vote Majority: expresses opinion of majority Dissenting: expresses opinion of minority. If the Court later overturns itself, it may draw upon a minority opinion for its reasoning. Concurring: written by a Justice who agrees with majority’s conclusions, but for different reasons. Assigning of opinions If Chief Justice voted with the majority, he assigns someone in the majority to write the opinion If the C.J. is in the minority, the most senior Justice among the majority assigns the opinion.

Voting blocs on the Supreme Court Liberals Elena Kagan (Obama appointee, 2010, 52 years old in 2012) Sonia Sotomayor (Obama, 2009, 58) Ruth Bader Ginsburg (Clinton, 1993, 79) Stephen Breyer (Clinton, 1994, 74) Conservatives John Roberts (Bush 43, 2005, 57) Antonin Scalia (Reagan, 1986, 76) Clarence Thomas (Bush 41, 1991, 64) Samuel Alito (Bush 43, 2006, 62) Swing/moderate conservative Anthony Kennedy (Reagan, 1987, 76)

The Supreme Court at work Term begins on first Monday in October and continues until the end of June. Hears cases from Monday-Thursday. Quorum of 6 Before oral arguments, the Justices read the attorney’s briefs Justices also read amicus curiae (“friends of the courts”) briefs. Justices hear 30” oral arguments from each side At the Friday conference, Justices discuss the cases Simply majority needed for decisions. In case of ties, previous court decision stands. Written opinions: Types: Unanimous: expresses opinion of all nine Justices: ~ 1/3 of the cases are decided by a 9-0 vote Majority: expresses opinion of majority Dissenting: expresses opinion of minority. If the Court later overturns itself, it may draw upon a minority opinion for its reasoning. Concurring: written by a Justice who agrees with majority’s conclusions, but for different reasons.

Assigning of opinions If Chief Justice voted with the majority, he assigns someone in the majority to write the opinion If the C.J. is in the minority, the most senior Justice among the majority assigns the opinion. The politics of opinion-writing Assigning the opinion is a key power of the Chief Justice: it enables the C.J. to get the right “slant” on the issue. Majority opinion writer must be careful not to alienate others in the majority, because they may change their minds and switch positions The majority opinion writer must therefore structure the argument in such a way as to keep the support of at least four other intelligent, independent Justices, any of whom may threaten to “jump ship” and switch his/her vote. Threat of a dissenting opinion can sometimes convince the majority to bend a bit in certain parts of the decision.

Purposes of opinions Communicate the Court’s reasoning to the public Establish precedents for future cases – importance of stare decisis Drop “hints” that Congress, the states, or the President should take certain actions, e.g., “In the absence of any action by Congress…” Possibility of evading Court decisions: The Supreme Court is the highest court in the land, but it is possible of evading Court decisions. Amending the Constitution. The Court cannot strike down something as unconstitutional if it is in the Constitution! When a decision is made, it is “remanded” to a lower court to carry out the Supreme Court’s decision. The lower court will have a certain amount of leeway in doing this The executive branch may simply not carry out the decision (e.g., Jackson’s famous line: “John Marshall has made his decision. Now let him enforce it.”) State and local governments may simply not carry it out, either (e.g., desegregation, school prayer) “The Constitution may be what the Supreme Court says it is, but a Supreme Court opinion is what a trial judge or a policeman or a school board or a city council says it is.”

JUDICIAL ACTIVISM V. JUDICIAL RESTRAINT Judicial activism Courts take active role “guardian ethic:” Examples of judicial activism: Brown v. Board, 1954: Striking down a flag burning ban law in Texas and congress Striking down the Gun Free School Zones Act in US v. Lopez, 1995 Striking down line item veto in Clinton v. NY, 1998 Striking down Florida recount in Bush v. Gore 2000 Striking down state death penalties for mentally retarded in Atkins v. Virginia, 2002 Striking down a Texas sodomy law in Lawrence v. Texas

Judicial restraint States and Congress solve problems, not the Court. Limit action to constitutional questions interpret the law rather than make law Original Intent Historical developments In prior to 1937, liberals complain about conservative activism -e.g., minimum wage, banning child labor FDR “court-packing” attempt in 1937

Next, conservatives complain about liberal activism, especially Warren Court ( ). Rights of the accused Civil rights Civil liberties Political issues The Burger Court ( ) was less activist than the Warren Court, but still upset conservatives with decisions such as Roe v. Wade full circle: Liberals accused the Rehnquist Court ( ) of being too activist e.g.: Overturning Gun Free School Zones Act Overturning Florida Supreme Court decisions in 2000 election Overturning California’s Proposition 215 that legalized medical use of marijuana

Restraints on judicial power Courts can make decisions, but cannot enforce them. Courts cannot reach out and take cases, but must wait for cases to come to them. Courts can rule only on real, live controversies. They cannot “create” cases. Presidential appointment of judges Congress Senate confirmation of judges Impeachment and removal Increasing the number of courts and judges, and the type of judges to Congress’ and the President’s liking. Passing constitutional amendments Repassing a law that was unconstitutional in hopes that the Supreme Court will change its mind. Determining the jurisdiction of the courts – what kinds of cases the courts can and cannot have. Stare decisis Existing laws The Constitution Public opinion