1. Chapter 8: The Federal Courts and the Judicial Branch Section 3: The Supreme Court (pgs.233-241)

2. Highlights of Supreme Court History After our founding fathers wrote the Constitution, Hamilton reassured Americans that the federal judiciary would be the weakest branch of the government but at the same time he foresaw the Supreme Court having the power of judicial review over acts of Congress and the executive branch. From 1789 to 1803 the Supreme Court did not have much power or prestige. People actually turned down offers to be on the court. John Jay 1 st Chief Justice

3. The Marshall Court Hamilton’s vision begun to come true when John Marshall became Chief Justice in 1801. Marshall was a Federalist and as such took an expansive view of the power of both the Supreme Court and the national government. After his 34 years on the court the judiciary had become an equal partner and full participant in our government. The 1 st big case was in 1803 Marbury v. Madison. This case asserted the Supreme Court’s Judicial Review.

4. The Marshall Court Part 2 There were many decisions that the Marshall Court made that helped shape the basic structure of the federal government and the economy. The decision in McCulloch v. Maryland (1819) made the necessary and proper clause a powerful mechanism to expand the implied powers of Congress. The decision in Gibbons v. Ogden (1824) helped assert the federal government’s power to regulate interstate commerce. The Marshall Court also upheld the contracts clause in Article I, Section 10 of the Constitution, laying the groundwork for rapid growth of the nation’s economy.

5. Dred Scott & Roger Taney Democrats dominated the presidency and the Senate for much of the 1 st half of the 1800s, therefore the Supreme Court began to reflect states’ rights and protection of slavery. Scott was a slave who had been taken into free states & then back into Missouri, t/f he sued for his freedom. The Taney Court ruled in Dred Scott v. Sandford that he was still a slave and blacks could not be citizens. The Court also ruled that the Missouri Compromise was unconstitutional. This decision set off violent partisan reaction which helped lead to the Civil War.

6. From Reconstruction to Plessy After the Civil War, Republicans became the leading party for the next 60 years, t/f they controlled the Supreme Court. The 13 th, 14 th, & 15 th Amendments were passed during Reconstruction (1865-1877). But after Reconstruction in the Civil Rights Cases (1883) the Court struck down the Civil Rights Act of 1875, which had tried to give blacks equality. The Court ruled that blacks needed to look toward state legislatures for redress, but states in the South did not uphold Civil Rights. Then in 1896, in Plessy v. Ferguson the Court ruled that there could be segregation if it was “separate but equal” During this era the Court also ruled that government could not regulate the economy.

7. The Court and the New Deal The Supreme Court continued to try to stay out of the economy from 1899 to 1937. During this era they struck down 184 cases dealing with economic regulation. However, when FDR became president he began to change the way the federal government would respond to the economy because of the Great Depression. In 1937, FDR threatened to “pack the court” which he did not do but b/c FDR was president for so long he was able to change the court and the Supreme Court became more liberal and began to get involved in the economy.

8. From the 1950s to the Present Between 1953 and 1969 the Warren Court made some very liberal decisions. The Brown v. Board of Education (1954) started the end of segregation. Gideon v. Wainwright (1963) got everyone a lawyer. Miranda v. Arizona (1966) got the police to read a person’s rights to someone being arrested. In Tinker v. Des Moines (1969) the court ruled that schools could not stop students from protesting the Vietnam War. Between 1953 and today Republican presidents have appointed 16 of 22 justices, t/f the court has become more conservative. The Bush v. Gore (2000) decision shows this to be true. It was a 5-4 ruling on party lines.

9. Choosing Supreme Court Justices Choosing a Justice is a very significant decision for a president b/c the justice can serve for the rest of their life. Therefore it is very political. The president looks at legal expertise, party affiliation, judicial philosophy, and how acceptable they are to the Senate. Also, the media and interest- groups are going to look at the nominee intensely. The Constitution gives no formal requirements for the job of justice, although throughout history a justice has had a background in the law. Most justices have been federal judges, some have been governors, and one has been president.

10. A “Litmus Test” Lately being in the same party has not been enough. Party activists have been imposing “litmus tests” on issues like abortion and federal health care. Presidents seek nominees that have the same judicial philosophy. And they need someone that will be approved by the Senate, t/f they may leak the would be nominee.

11. Confirmation Hearings The nominee faces intense questioning from senators. Senators will also look at a detailed report on the nominee’s qualifications written by the ABA. Opponents bring up past writings and decisions. When the Senate Judiciary Committee approves the nominee then the entire Senate will vote on the nominee. Most nominees are confirmed, since 1789 only 28 have not been confirmed.

12. Supreme Court Procedures The Supreme Court term begins each year on the 1 st Monday in October. And they remain in session until June or July. The justices have several dozen clerks, to help them with research and write opinions. In general, the Court session is divided into blocks of about two weeks. During one block the Court sits on the bench, listening to lawyers present their cases. During the second block the justices work behind closed doors to make rulings. During this time they also decide on what cases they will hear and issue orders on minor cases.

13. Selecting Cases The Supreme Court gets to choose which cases it wants to hear. The Court hears only a few cases each year that it has original jurisdiction. These are cases involving foreign ambassadors, or disputes between states, and disputes between one state and citizens of another country. The most common way for cases to get to the Court in on appeal from a federal court of appeals. A party that is unhappy with a ruling asks the Supreme Court to issue a writ of certiorai, which is an order asking the lower court to send a review of the case to the Court. The 3 rd way the Court can get a case is when a highest state court has exhausted all appeals and the case involves the Constitution. Today, the Supreme Court has about 100 cases on their docket a year.

14. Briefs and Oral Arguments The 1 st step in hearing a case is the reading of briefs. Briefs are written arguments prepared and submitted by each side of the case. Justices may also consider so- called amicus (or friend of the court) briefs. These are briefs prepared by outside parties that have an interest in the case. Next the justices listen to oral arguments in this room. Lawyers have 30 minutes and the justices have sharp questions during the arguments.

15. Opinions Next the Supreme Court will meet privately to discuss each case. The Chief Justice begins and all justices have a chance to talk and then the Court produces a formal written opinion. Many times the Court gives their ruling in May or June. Majority Opinion is one that is signed by at least 5 of the 9 members of the Court. Sometimes majority opinions are accompanied by Concurring Opinions. These agree with the overall conclusion but for different reasons. Dissenting Opinion are those held by the minority of the justices who do not agree with the ruling in the case. These could influence future judgments.

16. Court Orders The Courts full review of cases, complete with briefs, oral arguments, and written decision, is called plenary review. In addition to the 100 cases the Court gives full plenary review each year, the Court also disposes of some 50 to 60 cases with brief, unsinged court orders. In these decisions the Courts doesn’t hear oral arguments, or issue written opinions.