1. Chapter 16 The Supreme Court 1

2. Basic Supreme Court Facts  9 justices ($203,000 salary)  1 chief justice ($212,100 salary)  Nominated by the President, approved by the Senate.  Tenured for life  Annual docket = approx. 8,000 cases with fewer than 100 being heard each year.  $300 filing fee to have a case before the court. (Exception in forma pauperis)  Quorum = 6

3. Supreme Court Justices Standing, left to right: Associate Justices Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg and Samuel Alito. Seated, left to right: Associate Justices, Anthony M. Kennedy, John Paul Stevens, Chief Justice John Roberts, Associate Justices Antonin Scalia and David H. Souter

4. Changes in the Supreme Court: 1787- 1865 The Early Court Relatively lowly status First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up. First decade, Court not co-equal but it did assert itself. Tried to advance principles of nationalism and to maintain the national government’s supremacy over the states The Marshall Court (1801-1835) Judicial Review: the right of the federal courts to rule on the constitutionality of lower courts, laws and executive actions. It is the chief judicial weapon in the checks and balances system. Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional. McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law. The Early Court Relatively lowly status First session of the Supreme Court initially had to be adjourned when a quorum of the justices failed to show up. First decade, Court not co-equal but it did assert itself. Tried to advance principles of nationalism and to maintain the national government’s supremacy over the states The Marshall Court (1801-1835) Judicial Review: the right of the federal courts to rule on the constitutionality of lower courts, laws and executive actions. It is the chief judicial weapon in the checks and balances system. Marbury v. Madison (1803): The Supreme Court could declare a congressional act unconstitutional. McCulloch v. Maryland (1819): The power granted to federal government should be construed broadly, and federal law is supreme over state law.

5. Changes in the Supreme Court 1865- 1936: Government and the Economy The Supreme Court was supportive of private property, but could not develop a principle distinguishing between reasonable and unreasonable regulation of business The Court interpreted the Fourteenth and Fifteenth amendments narrowly as applied to blacks—it upheld segregation, excluded blacks from voting in many states 1936-Present: Liberty and Social Equality The Court establishes tradition of deferring to the legislature in economic regulation cases. The Warren Court provided a liberal protection of rights and liberties against government trespass.

6. Article III Article III Established the Supreme Court Gave Congress the authority to establish other courts as it saw fit. Specifies the judicial power of the Supreme Court and discusses the Court’s original and appellate jurisdiction. Framers gave federal judges tenure for life “with good behavior.” Some checks on judiciary included: ◦ Congress has the authority to alter the Court’s jurisdiction. ◦ Congress can propose constitutional amendments that, if ratified, can effectively reverse judicial decisions ◦ Congress can impeach and remove federal judges. ◦ President (with advise and consent of Senate) appoints federal judges. Established the Supreme Court Gave Congress the authority to establish other courts as it saw fit. Specifies the judicial power of the Supreme Court and discusses the Court’s original and appellate jurisdiction. Framers gave federal judges tenure for life “with good behavior.” Some checks on judiciary included: ◦ Congress has the authority to alter the Court’s jurisdiction. ◦ Congress can propose constitutional amendments that, if ratified, can effectively reverse judicial decisions ◦ Congress can impeach and remove federal judges. ◦ President (with advise and consent of Senate) appoints federal judges.

7. The Judicial Power of the United States Supreme Court The following are the types of cases the Supreme Court was given the jurisdiction to hear as initially specified in the Constitution: 1.All cases arising under the Constitution and laws or treaties of the United States 2.All cases of admiralty or maritime jurisdiction 3.Cases in which the United States is a party 4.Controversies between a state and citizens of another state 5.Controversies between two or more states 6.Controversies between a state and foreign states 7.All cases affecting ambassadors or other public ministers Since passing of the Constitution there have been inferior courts created to absorb some of the Supreme Court’s caseload.

8. U.S. District and Appellate Courts

9. The Judiciary Act of 1789 and the Creation of the Three-Tiered Federal Judicial System District courts:  At least one in each state, each staffed by a federal judge.  94 Courts  The most populous states have four (CA, TX, and NY)  Jurisdiction:  Involve the federal government as a party  Federal question based on a claim under the U.S. Constitution, a treaty with another nation, or a federal statute  Civil suits in which citizens are from different states, and the amount of money at issue is more than $75,000 Court of Appeals:  Avenue for appeal.  11 numbered circuit courts  Twelfth, D.C. Court of Appeals (Handles most appeals involving federal regulatory commissions and agencies)  Thirteenth, U.S. Court of Appeals for the Federal Circuit (Deals with patents and contract and financial claims against the federal government)  Have no original jurisdiction, hear no new testimony. Supreme Court size set in the Act – chief justice and five associates  Number of justices set to 9 in 1869, attempt to modify number by FDR shot down by public outcry.  Supreme Court decides which cases it will hear  Most cases are appellate jurisdiction, come from the federal courts, and are civil cases.

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12. The Structure of the Federal Judicial System Supreme CourtState Supreme Courts U.S. Regulatory Commissions US Courts of Appeals (11 + 1 + 1) US District Courts Court of Military Appeals Claims Court Tax Court Court of International Trade Legislative Courts Other Courts Constitutional Courts

13. Factors That Influence Supreme Court Nominations 1. Party Affiliation (80% or higher) 2. Judicial Philosophy 3. “Litmus Test” - where nominees stand on controversial issues like abortion 4. Background of Nominee (education, experience, race, gender, ethnicity, etc.) 5. Political favors 6. Interest group input 7. Securing a “safe” nominee Quick Facts  1 out of 5 nominees will not make it.  Generally white male lawyers with judicial and political experience  Generally of the same party as the appointing president  Presidents with minority party support in the Senate will have more trouble.  Chief Justice can be chosen from a sitting justice, or a new member.

15. Informal White House Review Media Influence Formal Presidential Nomination Senate Judiciary Committee Hearing Full Senate Vote Oath of Office Informal FBI Investigation Interest Group Influence U.S. Supreme Court Confirmation Process

16. The Supreme Court, 2004+ John Roberts b.1955 appt. 2005 (R) Harvard Law Bush Catholic Samuel Alito b.1950 appt. 2006 (R) Yale Law Bush Catholic 16 | 16

17. The Backgrounds of Judges and Justices 16 | 17

18. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 16 | 18 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

19. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 16 | 19 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

20. Figure 16.1: Female and Minority Judicial Appointments, 1963-2003 16 | 20 Updated from Harold W. Stanley and Richard G. Niemi, Vital Statistics on American Politics, 2003-2004 (Washington, D.C.: Congressional Quarterly, 2003), table 7.5.

21. The Supreme Court Decisions of the court of appeals are binding on only the district courts within the geographic confines of the circuit. Decisions of the Supreme Court are binding throughout the nation and establish national precedents. ◦ Reliance on past decisions or precedents to formulate decisions in new cases is called “stare decisis.” ◦ Allows for continuity and predictability Types of Decisions 1. Per curiam: brief and unsigned 2. Opinion of the court: majority opinion 3. Concurring opinion: agrees with the ruling of the majority opinion, but modifies the supportive reasoning 4. Dissenting opinion: minority opinion

22. Supreme Court Procedures

23. The Supreme Court and the American Public IssueCaseCourt DecisionPublic Opinion Should homosexual relations between consenting adults be legal? Lawrence v. Texas (2003)YesMaybe (50%) Should members of Congress be subject to term limits? U.S. Term Limits v. Thorton (1995) NoYes (77%) Is affirmative action constitutional? Grutter v. Bollinger (2003) Gratz v. Bollinger (2003) YesYes (64%) Before getting an abortion, whose consent should a teenager be required to gain? Williams v. Zbaraz (1980)One parentBoth (38%) One parent (37%) Neither parent (22%) Is the death penalty constitutional? Gregg v. Georgia (1976)YesYes (72%)

24. Supreme Court Today Court has two types of jurisdiction ◦ Original ◦ Appellate Rule of Four ◦ Court controls its caseload through the certiorari process.  All petitions for certiorari must meet two criteria:  The case must come either from a U.S. court of appeals, a special three- judge district court, or a state court of last resort.  Case must involve a federal question. This means that the case must present questions of interpretation of federal constitutional law or involve a federal statute, action or treaty. ◦ Cert pool ◦ Discuss list ◦ Cert granted when at least four justices vote to hear a case

25. Constitutional Interpretation Strict construction: judges are bound by the wording of the Constitution Activist: judges should look to the underlying principles of the Constitution. For: ◦ Courts should correct injustices when other branches or state governments refuse to do so ◦ Courts are the last resort for those without the power or influence to gain new laws Against: ◦ Judges lack expertise in designing and managing complex institutions ◦ Initiatives require balancing policy priorities and allocating public revenues ◦ Courts are not accountable because judges are not elected Today, most strict constructionists tend to be conservative, most activists tend to be liberal

26. What Do Supreme Court Clerks Do? Supreme Court clerks are among the best and brightest recent law school graduates. Almost all first clerks for a judge on one of the courts of appeals. After their Supreme Court clerkship, former clerks are in high demand. Firms often pay signing bonuses of up to $80,000 to attract clerks, who often earn over $130,000 their first year in private practice. Tasks of a Supreme Court clerk including the following: Perform initial screening of the 9,000 or so petitions that come to the Court each term Draft memos to summarize the facts and issues in each case, recommending whether the case should be accepted by the Court for full review Write a “bench memo” summarizing an accepted case and suggesting questions for oral argument Write the first draft of an opinion Be an informal conduit for communicating and negotiating between other justices’ chambers as to the final wording of an opinion