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Max Planck Encyclopedia of Comparative Constitutional Law [MPECCoL]

Supreme Court of the United States

United States [us]

Charles H Baron

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.date: 02 February 2023

Constitutional interpretation — Separation of powers — Judicial review — Constitutional courts/supreme courts — Judicial decisions

General Editors: Rainer Grote, Frauke Lachenmann, Rüdiger Wolfrum.
Managing Editor: Ana Harvey

A.  Sources of Power

1.  The Constitution and the Congress

1.  The Supreme Court of the United States came into existence with ratification of the Constitution in 1789. Art. III, the Judiciary Art., provides that ‘the judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.’ Prior to adoption of the Constitution, there were no national courts; only state courts that had assumed the business of the preexisting colonial courts (judicial systems in federal systems). Although the Constitution establishes the federal judicial branch, it leaves much in the way of detail to the Congress of the United States and to Anglo-American judicial tradition. Thus, Art. III provides that federal judges ‘shall hold their offices during good Behaviour’ (ie with no term limit) and that they should be paid ‘a Compensation which shall not be diminished during their Continuance in Office,’ but it was Congress’ Judiciary Act of 1789 that delineated the federal system of courts of original (ie, trial) and appellate jurisdiction leading up to the Supreme Court, set the original times of sitting of the Supreme Court (originally two terms starting in February and August), and established the number of justices (originally one chief justice and five associate justices). Similarly, while Art. III lays out the limits of the extent of federal court jurisdiction (among other things, explicitly granting original jurisdiction to the Supreme Court in certain cases), it is again Congress through the Judiciary Act that determines within those limits which categories of original and appellate jurisdiction are actually granted to the lower federal courts and what limits are to be placed on the types of appeals that may be taken to the Supreme Court.

2.  The President and the Congress

2.  Appointment of justices is made by the President of the United States with the advice and consent of the Senate (judges at constitutional courts / supreme courts). A vote of only a simple majority of the Senate is required to confirm the appointment. There are no specified requirements for the position. Nominees need not be lawyers or trained in the law, although all justices have in fact been such (selection of judges). Judges, like all other ‘civil officers of the United States’, may be removed from office under the provisions of Art. II, Section 4, ‘on impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.’ Impeachment is achieved by simple majority vote of the House of Representatives. But trial of the impeachment is before the Senate where conviction must be by two-thirds vote. In 1805, one member of the Supreme Court, Justice Samuel Chase, was impeached by the House, but he was subsequently acquitted by the Senate (removal from office of judges at constitutional courts / supreme courts).

B.  Structure and Operation

1.  Structure

3.  Since 1869, Congress has set the number of Supreme Court Justices at nine, although previously it had at times been set as low as five and as high as ten. In 1937, President Franklin D. Roosevelt, in an effort to end the Court’s opposition to legislation responding to the challenges of the Great Depression, proposed increasing the number of seats so he could add justices more sympathetic to his programmes. Despite popular support for the President and his legislative programme, respect for the Court as an institution led to the defeat of the effort and to what seems to be the establishment of nine justices as the accepted norm.

2.  Operation

(a)  Terms of Court

4.  Since 1873, Congress has provided for one annual term of court, beginning on the first Monday in October (hence, ‘October Term’) and usually running until late June or early July. The term is divided into ‘sittings’, when the Court hears arguments and delivers opinions, and ‘recesses’, during which Court members research, deliberate, write opinions, and do other Court business. All appeals are considered by, and argued before, the full bench of nine justices sitting in the building constructed for the Court in Washington DC in 1935. Counsel are normally given one half hour for arguments for each side. Judicial regalia consists of simple black robes. Thomas Jefferson had famously urged the Court to ‘discard the monstrous wig which makes English judges look like rats peeping through bunches of oakum’. Hearings are all open to the public; transcripts of arguments are made available each day on the Court’s website; audio recordings are made available at the end of each week. Thus far, pressure to allow video recording has been successfully resisted by the Justices and Congress.

(b)  Appellate Process

5.  Beginning with the Judiciary Act of 1789, Congress granted to litigants a right of appeal to the Supreme Court from specified adverse decisions in the lower federal courts and the highest court of each state. However, in 1891, Congress responded to complaints about what had become a burdensome number of appeals by narrowing the category of cases that could be brought by appeal as of right and leaving the remainder to be raised by a petition for a writ of certiorari—subjecting them to Court discretion as to whether the case would be heard or not. In 1925 and 1988, Congress restricted still further the category of cases that could be brought by appeal, and now almost all cases reach the Court only by way of issuance of writs of certiorari. A vote of four of the nine justices in favour is required for grant of the writ. There are no hearings on the petition, and opinions providing reasons for a grant or denial are almost never provided. Petitioners file with the Court 40 copies of booklets that are essentially briefs arguing the merits of the case as well as the reasons why the Court should want to review it. Petitioners without financial resources to support such an effort can apply for permission to proceed in forma pauperis, and, if permission is granted, all costs will be borne by the government. High among the criteria for granting petitions for certiorari are 1) the importance of the legal questions involved and 2) a need to resolve a conflict among decisions of the federal intermediate courts of appeal. Between 1995 and 2004, the Court received an average of 7,800 petitions each year, and only about one per cent were granted. The grant or denial of a petition is in no way a decision on the merits of the underlying case, and is not treated by the courts as such.

C.  Role as a Constitutional Court

6.  The United States Supreme Court was not established to serve principally as a constitutional court. As the nation’s highest court, its broad role is that of final judicial arbiter of all questions of federal law that are brought to it from decisions of the lower federal courts and the highest courts of the states. However, in the nature of things, those questions do sometimes raise federal constitutional issues, and, because of the importance of those issues, the cases raising them are often those for which certiorari is granted by the Court. Art. III, Section 2 provides in part that ‘[t]he judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority’. And Congress from the earliest specifically included within the Court’s jurisdiction appeals from state court decisions in which a federal constitutional claim had been raised and denied. Early in the nineteenth century, some state supreme courts tested the power of the Supreme Court to overturn their decisions in such cases. In reply, in the case of Martin v Hunter’s Lessee (1816) 14 US 304 (US) the Court held that the Judiciary Act had properly allowed it such power in civil appeals, and in Cohens v Virginia (1821) 19 US 264 (US) it held the same with respect to appeals in criminal cases. Thereafter, as one scholar has observed, ‘state attempts to make themselves the final arbiters in cases involving the Constitution, laws, and treaties of the United States have been foredoomed to defeat before of the highest Court’.

7.  Earlier, in the Marbury v Madison Case (US) (1803) (US), the Court had dealt similarly with the question of whether the Congress of the United States could be the final arbiter of the constitutionality of its own actions. There also, the decision was one regarding the meaning and validity of a grant of jurisdiction to the Court in the 1789 Judiciary Act. Marbury had invoked the Court’s original jurisdiction, seeking a hearing for his plea to have the Court issue a writ of mandamus that would order President Jefferson’s Secretary of State, James Madison, to deliver to Marbury a judicial commission for which he claimed a right. Although Art. III, Section 2 made the appellate jurisdiction of the Supreme Court subject to ‘such Exceptions, and under such Regulations as the Congress shall make’, the Constitution’s grant of original jurisdiction contained no similar language rendering that jurisdiction amenable to congressional modification. Since the power to grant writs of mandamus against government officials was not included in the constitutional grant and the Court read the 1789 act as attempting to include such actions nonetheless, it held the relevant portion of Congress’s legislation void as unconstitutional. Raising on his own the question of whether or not the Court had the power to declare Congressional legislation unconstitutional, Chief Justice Marshall reasoned as follows:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret the rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty.

D.  The Development of ‘Constitutional Common Law’

1.  The Common Law Process

8.  The Constitution provides no definition or details regarding what it means in Art. III by its grant to the federal courts of ‘[t]he judicial Power of the United States’ (judicial powers). In the Anglo-American common law tradition, the essence of judicial power is the rendering of decisions and provision of relief between disputing parties. The law applied in common law courts is largely developed in the decision-making process itself through a dialectic involving generations of judges, legal advocates for parties, and commentaries by legal scholars. The icons in that legal tradition are great American judges such as Marshall, and English judges such as Coke and Mansfield. Coke, for his part, celebrated the common law as the product of the highest reason that had ‘by many succession of ages [been] fined and refined by an infinite number of grave and learned men, and by long experience grown to [perfection]’. In 1610, in Dr Bonham’s Case (UK), Coke’s reverence for right reason lead him to strike down a statute in conflict with the common law and to state generally that ‘when an act of parliament is against common right or reason, or repugnant, or impossible to be performed, the common law will control it and adjudge such act to be void’. In the late eighteenth century, this decision became popular in America’s English colonies for its power to justify resistance against oppressive acts of Parliament that were argued to be in violation of the unwritten British constitution. The adoption of written American constitutions (state and federal) that accompanied the revolution provided the basis for what we think of as constitutional judicial review. It gave courts explicit constitutional provisions to employ as starting points for conducting the process. But, the application of provisions to the facts of cases still demanded an ongoing dialectic of interpretation and legal reasoning; the establishment of precedent; and, as a result, the development of constitutional common law.

2.  Lower Courts as Participants in the Process

9.  The Supreme Court of the United States sits at the top of this process of developing federal constitutional law. But it does not enjoy a monopoly over it. Art. VI, Clause 2 of the Constitution declares: ‘This Constitution ... shall be the supreme Law of the Land; and the Judges in every state shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding’. From early on, this has been interpreted to require state, as well as federal, judges to consider and decide any federal constitutional question that properly comes up in any suit brought before them. Rulings that are not appealed are governing law for the parties to the litigation out of which they arise and are treated as binding precedent in any courts inferior to the one making the ruling. Parties and their counsel control the conduct of cases, so it is up to them to decide whether or not to seek appeal of any decision against them. Thus, it is possible to have differing interpretations of constitutional provisions recognized as governing law in different federal court trial districts or federal intermediate appellate court circuits (appellate courts) or state court systems until the Supreme Court is given the opportunity to rule on the matter and bring about uniformity.

3.  The Justices as Participants in the Process

10.  With Marshall’s advent to the Court as Chief Justice in 1801, the Court abandoned the English tradition of having each judge write his own legal opinion in favour of having one ‘Opinion of the Court’ laying out the reasoning behind the decision. During Marshall’s 34 years as Chief Justice, he wrote over a thousand such opinions, and respect for him was such that dissenting and even separate concurring opinions were rarely filed. Newspapers gave coverage to the reasoning in the opinions and such reports were followed by an interested public. Until 1816, there was no officially appointed Reporter of the decisions. Prior to that, private individuals, and after that, the official Reporter, published, for profit, bound volumes of opinions that, consistent with English practice, bore their names, ie, Alexander Dallas (1790–1800), William Cranch (1801–1815), Henry Wheaton (1816–1827), etc. Finally, in 1874, the Congress appropriated funds for official publication under the title United States Reports, retroactively numbering them to begin with the first Dallas volume. Today, the United States Government Printing Office publishes the bound official reports. Individual printed ‘slip opinions’ are available immediately upon issuance by the Court.

4.  Advocates as Participants in the Process

11.  Citations to these opinions accompanied by arguments regarding their relevance to any case being heard by the Court are at the core of advocates’ written briefs, their oral arguments, and, ultimately, the justices’ opinions issued with their decision. The common law principle of stare decisis requires that advocates and judges work together to struggle to find the law in each case by drawing it out of, or at least making it consistent with, legal precedent. Advocates faced with adverse precedent will do their best to distinguish it from the case at bar by showing critical differences between the cases—the factual bases of each, the societal values being instantiated at the time, etc. The Court may do the same in an opinion, preferring to distinguish adverse precedent to openly overruling it. Thus, in the area of constitutional law, the Court in the Brown v Board of Education of Topeka Case (US), chose to distinguish Plessy v Ferguson (1896) 163 US 537 (US), rather than overrule it, pointing out that the earlier case’s allowance of state mandated racial segregation in the face of the Fourteenth Amendment‘s Equal Protection Clause concerned only segregated railroad passenger cars, not racially segregated public schools. The Brown Court cautioned:

[W]e cannot turn the clock back to 1868 when the Amendment was adopted, or even to 1896 when Plessy was written. ... Today, education is perhaps the most important function of state and local governments. ... We conclude that in the field of public education the doctrine of ‘separate but equal’ has no place.

12.  However, gradually thereafter, the Court struck down racial segregation in public buildings, housing, recreational facilities, and even public transportation. By 1963, in Johnson v Virginia (1963) 373 US 61 (US), the Court was ready to say, ‘it is no longer open to question that a state may not constitutionally require segregation of public facilities’ (racial discrimination).

E.  Handling Political Issues with Common Law Process

1.  The Rise of Judicial Hegemony

13.  Ultimate success at ending blatant, government-mandated, racial segregation in public facilities appears to have rendered the Court even more powerful than it had been previously. Whereas Marshall’s opinion in Marbury can be read as stating only that a court, like any other American governmental body, must determine what the Constitution demands when it makes decisions within its realm, the Opinion of the Court (for all nine justices) in Cooper v Aaron (1958) 358 US 1 (US), responded to the refusal of the Arkansas public schools to integrate by stating unequivocally:

[Marbury v Madison] declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system.

14.  In fact, one American President, Andrew Jackson, had famously denigrated a Supreme Court decision recognizing Indian tribal sovereignty (Worcester v Georgia (1832) 31 US 515 (US)) by stating ‘the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate’. But by 1957, in the wake of Brown, President Dwight Eisenhower felt obligated to send federal troops to Arkansas to make sure that African-American students would be allowed to enrol at Little Rock’s Central High School. Of course, many Supreme Court decisions are controversial, but means other than bold disregard must be used to undo them. The most direct method is a constitutional amendment overturning the decision. This has been accomplished only four times. The 11th Amendment overturned Chisholm v Georgia (1793) 2 US 419 (US); the 14th Amendment, Dred Scott v Sanford (1856) 60 US 393 (US); the 16th Amendment, Pollock v Farmers’ Loan and Trust (1895) 157 US 429 (US); and the 26th Amendment, Oregon v Mitchell (1970) 400 US 112 (US). Art. V makes amendment quite difficult by requiring supermajorities of both Congress and the states to effect it, and, in light of the near sacred status accorded the United States Constitution, the thought is most often that it is not the document that needs to be changed, it is, rather, its interpretation by a current majority of the justices. Hence, Roosevelt’s attempt at ‘court packing’ in the 30s, the occasional calls for impeachment of one justice or another after a particularly controversial decision, and the increasingly bitter and partisan battles in the Senate over presidential nominations to fill vacancies on the Court.

2.  Maintaining Judicial Hegemony

15.  Where it wants to avoid controversy, the Court has available to it a variety of mechanisms by which to attempt to regulate the extent of backlash that it may bring upon itself on any particular occasion. Previously mentioned is the ability to avoid hearing a case by denying certiorari or, once having taken a case, to use it as a basis for common law development toward a gradual change in constitutional interpretation rather than an immediately announced one. A variety of other methods arise from traditional notions of what the judicial power appropriately comprises. In 1793, when President Washington sought the advice of the Supreme Court on a series of international legal questions, the Court politely turned him down, saying:

The Lines of Separation drawn by the Constitution between the three Departments of Government—their being in certain Respects checks on each other—and our being Judges of a court in the last Resort—are Considerations which afford strong arguments against the Propriety of our extrajudicially deciding the questions alluded to ….

16.  The court does not give ‘advisory opinions’ to the other branches of government. In the words of a twentieth century Justice, ‘[a] case or controversy in the sense of a litigation ripe and right for constitutional adjudication by this Court implies a real contest—an active clash of views, based upon an adequate formulation of issues, so as to bring a challenge to that which Congress has enacted inescapably before the Court’. Thus, the Court may refuse to hear a case brought by a party who lacks ‘standing’, ie, one who cannot show that the law being challenged has caused the party, or threatens imminently to cause the party, a harm that can be remedied or prevented by the Court. Also, the matter must not be ‘moot’, ie raised too late for the Court to be able to grant the parties effective relief, and yet, on the other hand, it must not lack ‘ripeness’ by having been brought so soon that very good chances still exist for there being no need for court intervention.

17.  Finally, there is precedent for the Court deciding not to deal with an issue by determining it to be a ‘political question‘—one that is more appropriate for determination by the body politic than by judicial review (justiciability). It was first employed in Luther v Borden (1849) 48 US 1 (US), a case arising out of the 1842 struggle between Rhode Island’s government under its entrenched 1663 colonial charter (rigid (entrenched) / flexible constitutions), on the one hand, and a reform group, on the other, that claimed ratification of a new constitution and, therefore, the establishment of a new legitimate government. The Court was urged to decide the matter under Art. IV, Section 4, which places on the United States an obligation to ‘guarantee to every State in this Union a Republican Form of Government’. However, Chief Justice Taney demurred, claiming that it was the job of the Congress to determine which government was the legitimate one when it judged the qualifications of those elected to the House of Representatives and the Senate. ‘[I]t rests with the congress to decide what government is the established one in a state. ... And its decision is binding on every other department of the government and could not be questioned in a judicial proceeding.’ It must be noted that the political question doctrine has been availed of less and less frequently as the Court, particularly since Brown, has come to feel empowered to seek principled answers to the vast majority of constitutional questions when they are properly brought before it (constitutional courts / supreme courts as positive legislators). If the doctrine is not dead, as some commentators have suggested it is, it may at least now be restricted to those areas, such as the constitutionality of the process for a particular amendment or that for a particular impeachment or conviction, where the Court would be assuming final power over the few effective means of counterforce remaining to the other branches of government.

Select Bibliography

  • Chemerinsky, E, Constitutional Law: Principles and Policies (5th edn Wolters Kluwer Law & Business 2015).
  • Goebel, Jr, et al, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States 11 vols (revised edn CUP 2010).
  • Hall, KL, (ed), The Oxford Companion to the Supreme Court of the United States (2nd edn OUP 2005).
  • Irons, P, A People’s History of the Supreme Court (Penguin Books 2006).
  • Nowak, J, and Rotunda, R, Constitutional Law (8th edn West 2009).
  • Schwartz, B, A History of the Supreme Court (OUP 1993).
  • Shapiro, SM, Supreme Court Practice (10th edn Bloomberg 2013).
  • Toobin, J, The Nine: Inside the Secret World of the Supreme Court (Doubleday 2007).
  • Tribe, L, American Constitutional Law (3rd edn Foundation Press 2000).

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