Supreme Court of The USA

Supreme Court of the United States
Supreme Court of the United States, highest court in the United States and the chief authority in the
judicial branch, one of three branches of the United States federal government. The Supreme Court
hears appeals from decisions of lower federal courts and state supreme courts, and it resolves issues of
constitutional and federal law. It stands as the ultimate authority in constitutional interpretation, and its
decisions can be changed only by a constitutional amendment.
Nine judges sit on the Court: the chief justice of the United States and eight associate justices. The
president of the United States appoints them to the Court for life terms, but the U.S. Senate must
approve each appointment with a majority vote. Justices and Court staff work in the Supreme Court
Building, constructed in 1935, across the street from the Capitol in Washington, D.C. Before 1935 the
justices met in various rooms in the Capitol and elsewhere.
The Supreme Court wields complete authority over the federal courts, but it has only limited power over
state courts. The Court has the final word on cases heard by federal courts, and it writes procedures that
these courts must follow. All federal courts must abide by the Supreme Courts interpretation of federal
laws and the Constitution of the United States. The Supreme Courts interpretations of federal law and
the Constitution also apply to the state courts, but the Court cannot interpret state law or issues arising
under state constitutions, and it does not supervise state court operations.
The Supreme Courts most important responsibility is to decide cases that raise questions of
constitutional interpretation. The Court decides if a law or government action violates the Constitution.
This power, known as judicial review, enables the Court to invalidate both federal and state laws when
they conflict with its interpretation of the Constitution. Judicial review thus puts the Supreme Court in a
pivotal role in the American political system, making it the referee in disputes among various branches
of government, and as the ultimate authority for many of the most important issues in the country. In
1954, for example, the Court banned racial segregation in public schools in Brown v. Board of
Education. The ruling started a long process of desegregating schools and many other aspects of
American society. In the 1973 case of Roe v. Wade, the Court overturned state prohibitions on abortion
concluding that the Constitution guarantees every woman a right to choose an abortion, at least during
early stages of a pregnancy. The Courts constitutional decisions have affected virtually every area of
American life, from the basic ways in which business and the economy are regulated to freedom of
speech and religion.
The Supreme Court is the only court mentioned by name in the Constitution. Article III establishes the
Court as the top of the countrys judicial branch, making it equal to the executive branch (the president)
and the legislative branch (Congress). Article III also gives the Court jurisdiction (authority to review)
over broad classes of cases. In 1803 in Marbury v. Madison the Court interpreted its own authority,
ruling that the Constitution gave it the power to strike down unconstitutional acts of governmentthat
is, laws or other government conduct that violate the Constitution. This decision created the power of
judicial review, an essential component in the American system of checks and balances, a system that is
intended to safeguard Americans from government abuses of power.
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I. INTRODUCTION
II. POWER OF THE SUPREME COURT
III. JURISDICTION
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Article III gives the Supreme Court two types of jurisdiction. The Courts most important jurisdiction is
appellate, the power to hear appeals of cases decided in lower federal courts and state supreme courts.
Under Article III, the Courts appellate jurisdiction extends to seven classes of cases: (1) cases arising
under the Constitution, federal law, or treaty; (2) those involving admiralty and maritime matters; (3)
those in which the United States itself is a party; (4) cases between two or more states; (5) cases between
citizens of different states or foreign countries; (6) cases between a state and individuals or foreign
countries; and (7) cases between citizens of the same state if they are disputing ownership of land given
by different states. The first category is the most important. In these cases, part of the federal question
jurisdiction, the Court issues its most far-reaching constitutional decisions and other major rulings
involving federal law.
The Supreme Court has a far less important authority known as its original jurisdiction, which includes
cases that have not been previously heard in other courts. This gives the Court the power to sit as a trial
court to hear cases affecting ambassadors and other foreign officials, and in cases in which a state is a
party. The Court rarely exercises its original jurisdiction, since Congress has granted concurrent
jurisdiction over most of these cases to the lower courts. Only disputes between two or more states must
be heard initially in the Supreme Court. In 1997 and 1998, for example, it heard a dispute between New
York and New Jersey over the ownership of Ellis Island.
Congress cannot alter the Supreme Courts original jurisdiction, but Article III of the Constitution gives
it power to control the Courts appellate jurisdiction. The Court may not exercise any of its appellate
jurisdiction without congressional authorization, and Congress may limit the appellate jurisdiction
however it chooses. Congress has authorized the Court to use its full appellate jurisdiction, except on
rare occasions.
The Supreme Courts principle power is judicial reviewthe right of the Court to declare laws
unconstitutional. This authority is not expressly stated in the Constitution. The Supreme Court has
exercised judicial review since 1803, when Chief Justice John Marshall first announced it in Marbury v.
Madison. Marshall deduced the necessity of such a power from the purpose and existence of the
Constitution. He reasoned that judicial review was necessary to implement the Constitutions
substantive and procedural limits on the government. If the Court could not strike down a law that
conflicted with the Constitution, Marshall said, then the legislature would have a real and practical
omnipotence. Judicial review is both a powerful and controversial tool because it allows the Supreme
Court to have the ultimate word on what the Constitution means. This permits the Court justiceswho
are appointed rather than electedto overrule decisions already made by Congress and legislatures
throughout the country.
The Constitution does not specify the number of justices on the Supreme Court, leaving the issue to
Congress. The first Supreme Court in 1789 consisted of five justices. Initially the justices duties included
traveling through the country to hear cases in federal circuit courts. Congress added a sixth seat in 1790
and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress
added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a
tenth seat, only to abolish it when a justice died in 1865. In 1867 Congress reduced the seats to seven to
limit the opportunity of President Andrew Johnson to appoint new members. Congress restored the
number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices circuit-riding burden.
The number of justices has remained fixed at nine, making tie votes unlikely unless circumstances
prevent a justice from participating in deliberations.
The Constitution does not specify formal qualifications for membership on the Supreme Court. From the
beginning, though, justices have all been lawyers, and most pursued legal and political careers before
serving on the Court. Many justices served as members of Congress, governors, or members of the
IV. JUDICIAL REVIEW
V. MEMBERSHIP
VI. QUALIFICATIONS
Cabinet. One president, William Howard Taft, was later appointed chief justice. Some justices came to
the Court from private law practice, and others were appointed from positions as law professors. Many
justices appointed in the second half of the 20th century had experience in the United States courts of
appeal and other lower courts. Only one justice, Charles Evans Hughes, was confirmed as a Supreme
Court justice twice. President Taft appointed Hughes, then governor of New York, to the Court in 1910.
Hughes gave up his Court seat in 1916 to run for president, but he lost in a close race against Woodrow
Wilson. In 1930 President Herbert Hoover returned Hughes to the Court as chief justice.
Justices of the Supreme Court are appointed by the president and must be confirmed by a majority vote
in the Senate. The president usually chooses the nominees carefully to minimize the possibility that the
justice will veer far from the administrations own agenda after he or she is confirmed. The president
must also be careful to select a nominee with strong chances for Senate confirmation, otherwise the
administration may lose prestige in a bruising confirmation battle with the Senate. Presidents often try
to secure Senate support by balancing the Courts geographic and regional background. Many 20th-
century presidents have also tried to balance the Courts religious, racial, ethnic, and gender makeup.
Only Protestants served on the Court until 1836, when the Senate confirmed President Andrew Jacksons
nomination of Roger B. Taney, a Catholic. Since then there has almost always been a Catholic on the
Court. Louis D. Brandeis was the first Jewish justice in 1916. Civil rights lawyer Thurgood D. Marshall
became the first African American justice in 1967. President Ronald Reagan appointed the first woman,
Sandra Day OConnor, in 1981. The first Italian American, Antonin Scalia, came to the Court in 1986.
On average, the Senate rejects about 20 percent of all nominees to the Supreme Court. The presidents
choice must face questioning by the Senate Judiciary Committee, which then makes a recommendation
to the Senate as a whole. The Senate began asking nominees to appear before the Judiciary Committee
only in 1925, when President Calvin Coolidges nomination of Harlan Fiske Stone was in jeopardy. Felix
Frankfurter, a nominee of President Franklin Delano Roosevelt, testified before the Senate Judiciary
Committee in 1939. Such appearances before the committee became accepted practice in 1955, when
John M. Harlan testified.
Confirmation hearings are sometimes polite, quiet affairs, but some have been intensely political dramas
that have gripped the nation. In 1987, for example, the Senate held 12 days of rancorous hearings into
President Ronald Reagans nomination of Judge Robert Bork. Although Bork had strong qualifications,
his conservative views led many groups throughout the country to oppose his nomination. Some
senators charged that he had undergone a confirmation conversioncontradicting his earlier
published views to secure appointment. The full Senate defeated the nomination by a vote of 58 to 42. In
1991 President George W. Bush nominated Judge Clarence Thomas to replace the ailing Thurgood
Marshall. An initial debate over his qualifications gave way to a nationally televised drama over a leaked
accusation by Oklahoma University Law School Professor Anita Hill that Thomas had sexually harassed
her. Thomas bitterly denied the allegations, charging that he was the victim of a high-tech lynching.
The Senate eventually confirmed him by a vote of 52 to 48, the second closest vote in history.
Justices serve lifetime appointments. Under the Constitution they can be removed from the Court only
by first being impeached (accused) by a majority vote of the U.S. House of Representatives and then
convicted by a two-thirds vote of the Senate. There is no precise standard for determining whether a
justice has committed an impeachable offense, though the consensus is that removal should be for
criminal or ethical lapses, not for partisan political reasons. No justice has ever been removed through
this process, and only one justice of the Supreme Court has ever been impeached. In 1805 Justice
Samuel Chase was impeached in the House by his political enemies, but the Senate failed to convict
when it became apparent that Chases opponents were after him not because he had committed any
wrongdoing but because they disagreed with his decisions. The possibility of impeachment may have
been a factor in the resignation of Justice Abe Fortas, who left the Court in 1969 after allegations
surfaced that he had accepted a questionable fee from a private foundation. Some conservative groups
rallied for the removal of Chief Justice Earl Warren in the 1960s, but their efforts failed.
VII. APPOINTMENT AND CONFIRMATION
VIII. REMOVAL FROM OFFICE
In the wake of the controversy over Abe Fortass financial practices, the Court became more restrained in
its public activities. Once confirmed to the Court, justices try to ensure that their investments and
outside income do not bring their integrity into question. Common practice now dictates that justices
also remove themselves from politics, refraining from speaking out about controversial issues or pending
legislation. The justices can make public speeches, but these are usually confined to subjects related to
the law in general and to the federal court system. In these and other questions of judicial ethics the
Court usually follows the American Bar Association (ABA) Code of Judicial Conduct, although these
rules are not binding on the Court.
The Supreme Court hears only a tiny fraction of the cases that come before it. When the Court declines to
hear a case, the decision of the lower court stands as the final word on the case. Each year the Court
receives thousands of petitions to hear cases, but it usually decides to consider only a few. By the early
21st century, for example, the Court typically had about 10,000 cases on its docket. The justices usually
heard oral arguments in just 100 cases and issued signed opinionswritten explanations of its
decisionsin only 80 to 90. In the late 20th century the Courts docket had been much smaller,
consisting of about 5,185 cases in 1985, although it issued signed opinions in 151 cases that year.
The growth in petitions has many causes: a larger population, a more complex economy, and the
proliferation of business and other relationships. Adding to the Courts workload is a steady growth in
congressional and state legislation that requires judicial interpretation, and an increasing number of
constitutional and other issues that can be reviewed in the federal courts.
By law the Courts term begins the first Monday in October and usually runs through the end of June,
after disposing of all cases that have been argued during the term. On rare occasions, when a critical case
has arisen, the Court has heard arguments and issued decisions in the summer; for example, in 1974 the
Court issued its decision in United States v. Nixon, the Watergate tapes case, on July 24.
The Court does not meet continuously in formal sessions during its nine-month term. Instead, the Court
divides its time into four separate but related activities. First, some time is allocated to reading through
the thousands of petitions for review of cases that come annually to the Court. This time is not formally
assigned but is available during the summer and during those periods when the Court is not sitting to
hear cases. Second, the Court allocates blocks of time for oral argumentsthe live discussion in which
lawyers for both sides present their clients positions to the justices. From October through April, the
justices meet in blocks of two consecutive weeks on Mondays, Tuesdays, and Wednesdays to hear oral
arguments. These public sessions run from 10 AM to 3 PM, with a one-hour lunch recess, giving the Court
time to hear from lawyers in four cases each day.
During the weeks of oral arguments the Court sets aside its third allotment of time, for private
discussions of how each justice will vote on the cases they have just heard. Time is also allowed for the
justices to discuss which additional cases to hear. These private discussions are usually held on
Wednesday afternoons and Fridays during the weeks of oral arguments. The justices set aside a fourth
block of time to work on writing their opinionsthe statements of what the justices have decided and
their reasoning in the case. This writing period is usually in the weeks following each two weeks of oral
argument.
The chief justice presides at the justices conferences and assigns a justice to write opinions. The chief
justice also acts as spokesperson for the Court and for the federal judicial system, and supervises the
Courts budget and administrative staff. But in the central matter of hearing and deciding cases, the chief
justice and the associate justices are equals.
For a major government institution, the Supreme Court has a relatively small staff of about 325 people.
In 2005 Congress set the chief justices salary at $208,100, and the associate justices at $199,200.
The clerk of the Court serves as the Supreme Courts chief administrative officer, supervising a staff of 30
under the guidance of the chief justice. The marshal of the Court supervises all building operations. The
IX. THE WORK OF THE COURT
reporter of decisions oversees the printing and publication of the Courts decisions. Other key personnel
are the librarian and the public information officer. In addition, each justice is entitled to hire four law
clerks, almost always recent top graduates of law schools, many of whom have served clerkships in a
lower court the previous year.
For much of the Supreme Courts history, Congress required it to hear a large percentage of cases
appealed from the lower courts. But over the years Congress eliminated parts of this mandatory
jurisdiction, granting the Court more discretion to control its own calendar of cases. In 1988 Congress
abolished almost all mandatory jurisdiction so that today only a tiny fraction of cases now must be heard
on appeal. The Court otherwise has complete discretion to control the nature and number of the cases it
reviews by means of the writ (order) of certiorari. The word certiorari comes from Latin and means to
be informed. The writ of certiorari is an order from a higher court directing a lower court to send the
record of a case for review. The Court has long considered requests for writs of certiorari according to the
rule of four, which says that if four justices decide to grant cert, in the usual colloquial phrase, the
Court will agree to hear the case. Of the 6,000 or so certiorari (cert) petitions filed each year, the Court
agrees to consider no more than about 150 and sometimes fewer.
A petition for a writ of certiorari is a written document, generally filed by lawyers for the parties (though
many prisoners without lawyers write their own petitions). The party wishing to have the case heard is
known as the petitioner, and the side that won the case in the lower court is known as the respondent.
People seeking review of mandatory appeals are known as appellants, and their opponents are appellees.
In almost all cases, Supreme Court review may be sought only after the possibility of all other appeals in
the lower courts has been exhausted. Some cases come to the Court because two or more lower federal
courts have issued conflicting rulings on the same issue.
The justices have the right to sort through the cert petitions individually, but since the 1970s most of the
justices have belonged to the cert pool. In the cert pool, the justices law clerks gather to sort through the
petitions, and each case is assigned to a clerk who summarizes the facts, analyzes the legal issues, and
makes a recommendation to the Court. This provides the justices with a quick way of deciding whether
the case is certworthywhether it should be considered further by the full Court. The chief justice
maintains a discuss list, which includes all the cases he thinks are worth considering at the justices
Friday conference. Any justice may add a case to the discuss list, but if a case is not put on the list, it is
automatically refused a hearing by the Court. Relatively little time is devoted to discussing whether most
of the petitions should be heard.
The Supreme Court tries to avoid deciding cases whenever it can. This reluctance, which is called judicial
self-restraint, stems partly from the crushing volume of work facing the Court but also from a need to
maintain stability in the American legal system. Each Supreme Court ruling can affect the outcome of
hundreds or even thousands of cases in lower courts around the country. The Court tries to use this
enormous power only when a case presents a pressing constitutional issue.
The Court relies on several criteria to decide if a case requires action. To win Supreme Court review, a
case must fall within the Courts jurisdiction, raise a justiciable legal issue, and concern an issue of
constitutional or legal importance. Most cases do not meet these criteria, so the Court refuses to grant
certiorari. A denial of a writ of certiorari means that the case is over, and the decision in the lower court
stands as final. A denial of certiorari is not a judgment of the Supreme Court, so it is incorrect to say that
the Court agreed with the lower court. Denials of writs of certiorari have no value as precedents.
The most fundamental question is whether a case falls within the Courts jurisdiction. The Court can only
hear cases that are mandated by Congress or the Constitution. The Constitution does not give the
Supreme Court the power, for example, to hear cases that involve interpreting a state constitution,
unless the cases raise the question of conflict with the United States Constitution.
X. HOW CASES COME BEFORE THE COURT
XI. CRITERIA FOR SELECTING CASES
If a case does fall within the courts jurisdiction, it must also be justiciable, meaning it raises questions
that are appropriate for the Court to answer. Under Article III of the Constitution, the Court may hear
only Cases and Controversies. The Court regards several types of disputes as outside this
responsibility. It does not issue advisory opinionsstatements of legal interpretation about potential
cases. The Court issues opinions only in cases formally brought before it through the legal system. The
Court also hears only cases that pass the ripeness testthose that present an actual and substantial
threat to individual rights or other constitutional provisions. In 1947, for example, the Court decided in
United Public Workers v. Mitchell, that a group of federal workers could not block enforcement of a law
that created only the possibility of a threat to their First Amendment rights. Similarly, a case must meet
the mootness standardpresenting a current problem that has yet to be resolved. Ruling in DeFunis v.
Odegaard in 1974, for example, the Court held that a student could not challenge allegedly
discriminatory law school admissions procedures after he had already been admitted to the law school
and was about to graduate.
The Supreme Court also requires that a party bringing a case have standinga strong vested interest in
the issues raised in the case and in its outcome. In most instances, for example, a taxpayer cannot sue
the government for unwise spending, unless he or she can show a direct injury resulting from the
spending. The Court also refuses to hear cases known as political questions, although it often considers
cases that affect the political system. The precise definition of a political question is less clear than other
Court justiciability doctrines, but analysis of the issue usually focuses on whether a question is best left
to the discretion of another branch of government. The Supreme Court does not, for example, hear most
cases challenging the presidents foreign policy decisions. Similarly, the Court rarely considers cases
involving the militarys rules and regulations, preferring to leave these questions to the armed forces.
The political question doctrine does not, however, prevent the Court from issuing rulings on thorny
political issues such as how to draw congressional districts.
When the Supreme Court agrees to hear a case, the parties lawyers submit briefs before oral argument.
A brief includes a written statement of the facts of the case, a discussion of the law and precedents, and
an argument that shows how the law should be interpreted in the partys favor. In 1980 the Court
established a rule that limits briefs to 50 pages. The justices read the briefs and the record of the case
from the lower court quite thoroughly. Justices and advocates over the years have said that many cases
are won or lost on the strength of the briefs. In addition to the parties briefs, the Court occasionally
permits individuals and groups with an interest in the case to file an amicus curiae, or friend-of-the-
court, brief. An amicus brief allows parties not directly involved in the case to offer their views about the
issues at stake and the likely impact of a decision. The United States and state governments may file
amicus briefs in particular cases without requesting permission. In important cases, dozens of such
briefs may be filed.
After briefs are submitted, the justices set a date for oral argument. In private cases, a lawyer represents
each party. The Court appoints a lawyer to present appeals on behalf of individuals too poor to pay their
own expenses. The solicitor general, the third-ranking official in the Department of Justice, presents the
governments position in cases involving the federal government. States have their own rules for
determining who will appear when they are parties to Supreme Court appeals.
In the early years of the Court, oral argument in a single case could go on for days, and the leading
orators of the time would draw crowds to hear them debate. Today the process is strictly regulated. In all
but the rarest cases, each side has exactly 30 minutes to present oral arguments to the justices. Typically,
the advocate begins to state his or her position, only to be interrupted by questions from the justices that
last through the allotted time. At the end of 30 minutes a red light at the lawyers lectern turns on, and
the lawyer is told to stop, sometimes even in midsentence. The oral arguments can be decisive. It is the
only opportunity to give direct answers to pointed questions. Charles Fried, a former solicitor general,
has written that a successful oral argument is more like a compelling conversation than a lecture.
All nine justices sit to hear the oral arguments. The Supreme Court does not sit in smaller panels, except
in cases of illness or when a justice recuses (disqualifies) himself or herself from participating, perhaps
because of a relationship with one of the lawyers or because of some personal interest in the case. At
XII. BRIEFING AND ORAL ARGUMENT
least six justices must be present to hear oral arguments. The public may attend all oral arguments,
which are held in the main courtroom on the first floor. Since 1955 oral arguments have been officially
taped, and in recent years they have been made available for listening and purchase by the public.
Obtaining the audiotapes can be a time-consuming process, however. The Court bars all other tape
recorders, cameras, and other recording devices, so journalists covering the Court must rely on official
transcripts and on artists sketches of the proceedings.
Every Wednesday and Friday during weeks when the Supreme Court hears oral arguments, the justices
gather in conference to discuss cases they have heard. No one else is allowed in the room. If a messenger
comes to the door, the junior justice goes to the door to receive the message. After a round of
handshakes, the justices take assigned seats around a large conference table, and the chief justice begins
the discussion by stating the facts of each case and presenting his conclusion. The justices in order of
seniority then present their views and the chief justice declares the Courts tentative vote. It is not a
meeting for extended argument among the justices, but merely to sound out the Courts likely decision.
Once the Court reaches a tentative decision, there remains the important task of writing an explanation
of the legal reasoning behind the ruling. This document, known as the majority opinion, establishes the
law on the issue in question, so justices take considerable care in drafting them. If the chief justice sides
with the majority of justices in voting on a particular case, the chief justice can then assume
responsibility for the task of writing the Courts majority opinion, or assign the task to another of the
justices in the majority. If one or more justices disagree with the Courts decision, they may write a
dissenting opinion that explains their views of the case and the law. If the chief justice sides with the
dissenting minority, then the most senior justice in the majority writes the majority opinion or assigns
the task to another of the justices in the majority.
The justices often ask their clerks to prepare the first drafts of their opinions. This practice, Chief Justice
William Rehnquist wrote, may undoubtedly and with some reason cause raised eyebrows in the legal
profession and outside of it. But as Rehnquist explained, the law clerk is not off on a frolic of his own,
but is instead engaged in a highly structured task which has been largely mapped out for him by the
conference discussion and my suggestions to him. Few drafts escape heavy editing and revisions by the
justices.
Justices may take weeks or even months to complete their opinions, and votes may change during this
period. The justices circulate drafts of the opinions and sometimes write memos to explain their views.
Dissenting justices sometimes decide to go along with the majority, and justices initially in the majority
may decide to support the dissenting view. In some cases enough justices change their votes that an
opinion that began as the Courts majority opinion becomes a dissenting opinion. Because the justices
can and often do change their votes right up until the moment the decision is publicly announced, there
is often a considerable amount of discussion and negotiation to shape the direction, tone, and analysis of
the Courts opinion.
Although there is often a single majority opinion and a single dissenting opinion, each justice can write
his or her own opinion on either side of the case. Separate opinions that support the majority decision
are called concurring opinions and are published along with the majority opinion and any dissents. Only
the majority opinion carries the force of law, but dissenting opinions sometimes signal possible new
directions in the Courts thinking on an issue.
When the opinions become final, the justices announce their decisions in open court. The opinions are
then published in a variety of places. The Court records its official decisions in the United States
Reports, a periodical published after each Supreme Court term. The United States Reports are often
delayed by months or even years, so decisions are also published unofficially by private publishing
houses. The most widely known of these publications are Supreme Court Reporter and United States
Supreme Court Reports, Lawyers Edition. Decisions appear the next day in U.S. Law Week, a pamphlet
series. They are also available in the two major electronic commercial legal databases, Lexis and
XIII. ANALYSIS AND DISCUSSION
XIV. WRITING OPINIONS
Westlaw, and on many World Wide Web sites.
The Supreme Court declares constitutional and legal rights, but it has no force to compel obedience to its
decisions. Other branches of government have from time to time failed to comply with constitutional
rules. In a few instances the government and private citizens actively resisted both the letter and spirit of
the Courts rulings. For example, Southern states followed a policy of massive resistance to the decision
in Brown v. Board of Education (1954), refusing to proceed with the Courts order to desegregate public
schools.
Yet to a remarkable degree, sooner or later other branches of the federal government and state and
municipal authorities fall into line, for several reasons. First, there has been a broad historical consensus
that Supreme Court decisions are to be respected, so that public opinion in most instances will
eventually turn against other branches that resist a Supreme Court ruling, prompting changed public
policy through elections. Second, to a large extent the Court itself abides by its own decisions. This
principle, known as stare decisislet the decision standtends to make the law consistent and
predictable, discouraging people from defying a ruling by hoping that they can go back to the Court to
secure a different ruling. Third, other courts, both state and federal, are bound to follow the Supreme
Courts decisions on constitutional and federal law. Officials and private citizens alike who fail to abide
by the logic of a decided case can thus be brought back to court.
The principle of stare decisis does not stop the Supreme Court from altering or overturning its own legal
precedents. On occasion the Court has dramatically departed from what seemed a settled precedent. In
one case the Court waited just three years before it issued a new ruling. The Court ruled in 1940 in
Minersville School District v. Gobitis, by an 8-1 vote, that a public school can require schoolchildren to
salute the flag, even though doing so violates their religious beliefs. For three years, members of the
Jehovahs Witnesses were subject to threats and in some cases physical violence and even death for their
continued resistance. In 1943 in West Virginia State Board of Education v. Barnette, the Court admitted
its error and overruled the Gobitis case by a 6-3 vote. It said that freedom of speech means that the
government cannot force people to express their beliefs.
Sometimes the reversal of a precedent can cause sweeping changes in American society. In 1937, for
example, the Court ruled in NLRB v. Jones & Laughlin Steel Corporation that Congress could regulate
activities that had even an indirect effect on interstate commerce. This was one of a series of cases that
moved the Court away from its longstanding view that Congress had only limited power to intervene in
the economy. The reversal of 19th-century precedents on the issue paved the way for Court approval of
minimum wage regulations in the Fair Labor Standards Act, old-age pensions in the Social Security Act,
and many other elements of President Franklin Roosevelts New Deal policies of the 1930s.
Whether the Courts rulings will be accepted depends in part on how far the Court departs from public
opinion. Some critics object when they perceive the Court as pursuing an activist agenda, rather than
simply interpreting the Constitution. The Court comes under even heavier fire when it appears that
justices are writing their own values into the Constitution. Quite often the critics who object to an activist
Court are politically conservative, and those who favor judicial activism support liberal politics. But
judicial activism and conservatism do not always reflect a liberal-conservative political split. Critics of
the Courts expansion of procedural rights for criminal defendants in the 1950s and 1960s, for example,
attacked the decisions as activist and politically liberal. On the other hand, critics of the Courts
suppression of the governments power to regulate commerce in the 1920s complained that those
decisions were activist and politically conservative.
Since the early 19th century the Supreme Court has played a central role in resolving many of the
countrys most difficult problems. The Court has dealt with the issue of slavery and racism, the power of
the federal government over the states, the role of the government in the economy, abortion, the rights of
people accused of crimes, and many other complex issues. The Courts decisions have often stirred
controversy, and those who disagree with its rulings have sometimes called its authority into question.
XV. EFFECTS OF THE COURTS DECISIONS
XVI. HISTORY
Still, through most of its history the Supreme Court has stood as one of the most respected and trusted
institutions in the United States.
The Supreme Court heard few cases in its early years, and played a rather insignificant role in the
political system. During the 1790s, three chief justices served only brief terms, and several nominees
turned down presidential appointments. When the nations capital moved to Washington, D.C., in 1800,
the Court did not initially have its own building. The justices had to conduct sessions in a series of
temporary venues that included a congressional committee room, a Library of Congress office, and a
courtroom built in the Capitol basement. These meager facilities failed to reflect the Courts increased
stature after John Marshall became chief justice in 1801. Marshall served on the Court for 34 years, still
one of the longest tenures, and transformed the Court into a potent engine of the national government.
In 1803 in Marbury v. Madison, he announced the doctrine of judicial review, and his opinion was given
as that of the entire Court rather than, as had been the custom, the opinion of a single justice.
In many other significant decisions, Marshall read the Constitution broadly to establish a wide scope of
federal power for both Congress and the Court itself. Most significant was the 1819 decision in
McCulloch v. Maryland, which defined congressional power quite broadly. Marshall held that the
Necessary and Proper Clause in Article I, Section 8 of the Constitution permitted Congress to establish a
national bank, even though no such power was expressly stated in the Constitution. In the same case the
Court established the supremacy of the federal government by barring the states from taxing any part of
the federal government. In 1824 in Gibbons v. Ogden, the Court broadened congressional power under
the Commerce Clause in Article I, Section 8 of the Constitution, laying the groundwork for extensive
federal regulation of interstate commerce.
The Court under Marshall also claimed strong authority over the states by asserting its right to overturn
state laws. In 1810 in Fletcher v. Peck, for example, the Court ruled that the Contracts Clause in Article I,
Section 10 of the Constitution barred some state attempts at regulating economic activity. In 1819 the
Marshall Court gave private corporations protection from state regulations in Dartmouth College v.
Woodward (See Dartmouth College Case). In both of these cases the Supreme Court served notice that
the states could not pass laws that conflicted with the federal Constitution, and that the Court would be
the judge of such conflicts. But during Marshalls final years as chief justice in the 1830s, the Court
recognized limits on federal power as well. In 1833 the Court ruled in Barron v. Baltimore, for example,
that the Bill of Rights (the first ten amendments to the Constitution) applied only to the federal
government and not to the states.
By the 1830s the Court was forced to confront the issues raised by the countrys rapid industrialization.
As industry replaced agriculture, the Court under the leadership of Roger Brooke Taney sought to define
the appropriate economic role for state and federal government. Early in Taneys term the Court
confirmed the power of states to manage industrial development. In the 1837 case Charles River Bridge
v. Warren Bridge, the Court ruled that Massachusetts could enact a law that hurt some economic
interests if it encouraged long-term economic growth overall. The Court decided in Swift v. Tyson in
1842 that federal courts had authority to develop general commercial law when the citizens of different
states had legal conflicts, and the decision stood until 1938 when the Court said such authority belonged
only to the states.
In 1848 in West River Bridge v. Dix, the Court upheld the states constitutional authority to curb
corporationstheir power of eminent domainas long as they paid just compensation for what they
took. This case greatly aided the rapid growth of the new railroads. In Genesee Chief v. Fitzhugh (1852)
the Court reversed a Marshall decision and expanded the reach of federal jurisdiction over the inland
waterways. The Court also prevented the states from interfering with the development of steamships.
Although the Supreme Courts decisions in the first half of the 19th century helped the economy, that
Court would forever be condemned in historys eyes because of its position on slavery. Four of the
Courts nine members were from slave states, and only Justice John McLean clearly opposed slavery.
A. Origins
B. Commerce, Slavery, and Civil War
The Court issued several proslavery opinions, including the notorious case of Dred Scott v. Sandford
(1857), which most historians consider a major step toward the Civil War (1861-1865). In the Dred Scott
case, a slave owner hoped to secure an opinion from the Court declaring that slaves who escaped to free
states did not automatically become free.
The Court could have limited its opinion to a narrow reading of Scotts right to sue in federal court, but
instead went much further. First, the Court ruled that the federal government had no authority to control
slavery in federal territories before they became states, even though Congress had done just that in the
Missouri Compromise of 1820. It was the first time since Marbury v. Madison that the Court had
overturned a federal law as unconstitutional. Second, the Court denied that even free blacks could be
citizens of the United States. The Court seemed to say that not even free states could prohibit slavery,
thus making political solutions and compromise among the states virtually impossible. Chief Justice
Taney thought that he had resolved the issue of slavery once and for all. In a sense the Court had settled
the issue, but only by sending the nation into civil war. The northern reaction to the Dred Scott case led
directly to Abraham Lincolns election as the first Republican president, the Souths secession, and the
war that ended slavery. Some blame for the American Civil War certainly falls on the failed political
leadership in the White House and Congress, but the Supreme Court merits criticism as well.
Chief Justice Taney died in 1864, leaving the Court just as it faced Reconstructionthe process of
rebuilding the Souths tattered economic and political structures. The Congress, dominated by northern
Republicans, enacted strong laws that permitted military government in the South until new state
governments could be put into place. The Court limited some efforts of the federal government to govern
by military tribunals. In Ex parte Milligan in 1866 it refused to permit military trials of civilians as long
as the civil courts were open. But the Court also upheld other Reconstruction laws and refused to bar
President Andrew Johnson from enforcing them. The Court showed great restraint when Congress
stripped it of jurisdiction to hear a case challenging the constitutionality of a Reconstruction act. Even
though the case was pending, the Court agreed in Ex parte McCardle in 1869 that if Congress limited the
Courts jurisdiction according to the Constitution, the Court would be powerless to act. This decision
alleviated fears that the Court was determined to rule Reconstruction unconstitutional. By supporting
Reconstruction, the Court helped the country recover from the social and economic destruction of the
Civil War.
By 1870 the Court had to confront the new constitutional issues created by the states ratification of the
13th, 14th, and 15th amendments to the Constitution. The most pressing issue was: Since these
constitutional amendments gave African Americans the right to freedom from slavery, did they also give
blacks other civil rights protections? Congress assumed that the amendments did grant African
Americans new rights and enacted several laws designed to protect civil rights through the federal
courts. These laws seemed to threaten the historic balance between state and federal power, which the
Supreme Court was reluctant to upset. In the so-called slaughterhouse cases in 1873, the Court took a
narrow view of the 14th Amendment. A broad application of the amendment, the Court reasoned, would
make the High Court a perpetual censor upon all legislation of the states whenever a civil right was at
stake. In this and other decisions, the Court showed that it was unwilling to disrupt the balance of power
between state and federal governments despite the 14th Amendment, which commanded change to
ensure nationwide racial equality and due process of law. The Court also showed that it was unwilling to
disrupt the racial status quo.
The Courts failure to make good on the Constitutions promise of equality reflected a widespread
persistence of racism in American society and institutions. In the Civil Rights Cases of 1883, the Court
ruled that Congress had no authority to impose a national ban on discrimination in public
accommodations such as theaters, restaurants, and hotels. The Court did strike down state laws that
explicitly discriminated against blacks, as in Strauder v. West Virginia in 1880 when it ruled against
juries that excluded blacks. But the Court had backed away from even modest protections by the end of
the 19th century. In 1896 the Court in Plessy v. Ferguson upheld the racial segregation of public facilities
provided that they were separate but equal, a notorious position from which it began to retreat only in
the 1940s.
By the early 20th century, many American citizens and political leaders backed the reforms of the
C. From Reconstruction to the New Deal
Progressive movement, which advocated limits on large businesses and more rights for workers and
consumers. The Supreme Court, however, sharply reined in the efforts of both the state and federal
governments to regulate the economy. Strong pressure for national economic regulation led to some
victories for Congress, but the Court generally denied Congress the power to break up certain
monopolies and take other steps to improve market competition. In addition the Court adopted a
doctrine of economic due process that made it more difficult for the government to regulate business and
property rights. In 1905, for example, the Court ruled in Lochner v. New York that the state could not
regulate the working hours of bakery workers. The Court reasoned that it could invalidate any
unreasonable interference with the liberty of contract. Lochner and related cases created substantive
due process, a new class of basic constitutional rights that was initially used to overturn minimum wage
legislation and trade union protections.
The Supreme Court continued to limit state and federal involvement in the economy through the 1920s
and into the Great Depression, the economic hard times of the 1930s. The restrictions at first hobbled
the efforts of President Franklin D. Roosevelt to enact the New Deal, a program of economic reforms and
government projects intended to confront the Depression. Roosevelt tried to get the New Deal through
by packing the Courtexpanding the membership so that he could appoint justices open to his
philosophy. Congress refused to expand the size of the Court, but the Court's justices soon eased
restrictions on Roosevelt's programs. In a sharp about-face, the Court sustained far-reaching trade union
and workplace regulations in NLRB v. Jones & Laughlin Steel in 1937. The Court soon used the federal
commerce power to grant virtually unlimited authority to Congress to regulate whatever affected
interstate commerce. The Court also rejected the doctrine of economic due process. By the 1940s, a new
set of justices, all but one appointed by Roosevelt, had remade constitutional law dealing with economic
matters.
From the end of World War I in 1918 until the 1950s, the Supreme Court slowly but inconsistently
expanded individual liberties. Though it upheld convictions of alleged subversives and approved many
laws that restricted free speech, the Court also laid the groundwork for a revolution in First Amendment
and privacy law. The Court expanded the existing doctrine of substantive due process to include personal
rights in the 1923 Meyer v. Nebraska, which struck down a Nebraska ban on the teaching of foreign
languages in elementary schools. By applying its notion of substantive due process to social concerns, the
Court opened up the possibility that it would one day protect individuals in their more intimate
relations.
The Court paved the way for expanded civil liberties in the 1925 case Gitlow v. New York, in which it said
that the freedoms of speech and press enjoyed 14th Amendment protection against infringement by the
state. Under this reasoning, the 14th Amendment incorporated most of the ten amendments of the Bill
of Rights, and applied those rights to the states. Through this doctrine of incorporation, the Court also
began a revolutionary expansion of the rights of the accused. In 1932, for instance, it ruled in Powell v.
Alabama that states must provide a fair trial in criminal cases.
The Court remained conservative on most racial issues through the 1940s, and continued to deny
minorities protection from racial discrimination in housing, employment, voting, and other areas. A low
point came in the Courts 1944 decision in Korematsu v. United States, in which it refused to stop the
government from holding more than 100,000 Japanese-American citizens in prison camps during World
War II (1939-1945). Many critics regard the case as the Supreme Courts worst decision of the 20th
century. (In 1988, citing the appalling injustice of the governments actions, Congress apologized and
authorized a token payment to the survivors of the camps.) But the Court did note that laws and policies
that turn on race would be examined with utmost scrutiny, a standard that the Court later used to
reject many discriminatory laws. Beginning in 1938, the Court decided a series of cases that chipped
away at the 1896 Plessy v. Ferguson standard of separate but equal for racially segregated facilities,
insisting that the equal has as much meaning as separate. In 1948 the Court invalidated all attempts
to enforce racially restrictive covenantsclauses in deeds to land that prohibited owners from selling
their property to blacks and other minorities.
D. Individual Rights in the First Half of the 20th Century
E. The 1950s and 1960s: The Warren Court and Social Change
In 1953 President Dwight D. Eisenhower named Earl Warren as chief justice of the Supreme Court. The
Warren Court transformed the American legal system, implementing the largest expansion of civil rights
and civil liberties in the nations history. Warren had an immediate impact on the Court, forging
unanimous support for the 1954 case Brown v. Board of Education, which ended legalized segregation
in public schools. The landmark ruling also launched a legal and political revolution that eventually
abolished the shameful system of official racial segregation throughout American society. Although the
Court seemed to offer a narrow rationale in Brown for overturning the 1896 Plessy v. Ferguson doctrine
of separate but equal, it soon showed a willingness to strike down virtually all racially discriminatory
laws. By the time the Court decided in Loving v. Virginia (1967) that Virginia could not ban interracial
marriages, it was clear that the Court would use the Equal Protection Clause of the 14th Amendment to
bar almost all laws and policies that classified people on the basis of race. The Supreme Court did not
stop at striking down discriminatory laws. It also affirmed the power of Congress to guarantee voting
rights through strict laws, to require the racial integration of public facilities, and to enact a variety of
other policies.
Under Chief Justice Warrens leadership, the Court also began to roll back restrictions on freedom of
speech and association that previous Courts had endorsed in the early 1950s to fight Communism. By
the late 1960s the Court dramatically transformed First Amendment doctrines. In New York Times v.
Sullivan in 1964 the Court established a rule that made it far more difficult for public figures to win libel
cases against the news media. By 1969, Warrens last year on the Court, the justices were willing to adopt
a First Amendment rule in Brandenburg v. Ohio that protected nearly all types of political speech,
except that which incited imminent lawless action.
The Warren Court also carved out new protections for people accused of crimes. The Court applied the
4th, 5th, and 6th amendments to the states by incorporating them into the 14th Amendment, providing
broad new rights for defendants in criminal cases. In 1961 in Mapp v. Ohio the Court held that evidence
seized in violation of the Fourth Amendment must be excluded from all trials. In 1963 it ruled in Gideon
v. Wainwright that states must provide anyone accused of a felony with a lawyer to assist in the defense.
In 1966 the Court defied growing conservative opposition to its expansion of rights of the accused when
it declared in Miranda v. Arizona that suspects had to be advised of their constitutional rights when they
were put under arrest. In the Miranda case the Court further ruled that courts could not accept suspects
confessions unless they offered them after the police advised them of their rights.
The Warren Court generally denied claims to substantive liberties beyond those specifically named in the
Constitution, such as the freedoms of speech and press. In one key decision, however, the Court
expanded the substantive due process rights to include a right to privacy. The ruling came in 1965 in
Griswold v. Connecticut, in which the Court struck down a Connecticut ban on the use of contraceptives
by married couples. The decision led eight years later to the watershed Roe v. Wade, which overturned
state prohibitions on abortion.
President Richard Nixon replaced retiring Chief Justice Earl Warren with Warren Earl Burger in 1969.
By 1972 Nixon had appointed three more justices. Because Nixon had campaigned vigorously against
many of the Warren Courts decisions, it seemed likely that his appointments would shift the Court in a
more conservative direction. The Court did issue conservative decisions in some areas, but it also
continued to build on the Warren Courts legacy of judicial activism.
The Supreme Courts most explosive decision in this period came in the 1973 case Roe v. Wade, which
ruled state prohibitions on abortion unconstitutional. This decision was based on the right to privacy
established by the Warren Court. The Court voted 7 to 2 against outlawing abortion, and three of Nixons
justices, including Burger, sided with the majority. In the decades that followed, the Court addressed
abortion in several more cases, but continued to uphold the essential premise of individual privacy in
Roe. This conception of privacy regarded the right to an abortion as part of the right of a person to do
with her body as she wants. The Constitution creates no such right explicitly, but the Court found one in
the substantive due process rights guaranteed by the due process clause of the 14th Amendment. Critics
charged that the Court majority had written its own values into the Constitution, insisting that the
framers never intended to give the word liberty such a broad meaning.
F. The Mixed Legacy of the 1970s and 1980s
The Burger Court also bolstered womens rights by striking down several laws that discriminated against
them based on their sex. The Court reasoned that the Equal Protection Clause of the 14th Amendment
prohibited such discrimination. The landmark extension of the Equal Protection Clause to women came
in the 1976 case Craig v. Boren, in which the Court ruled that gender-based discrimination must be
substantially related to important legislative goals. This standard, although less rigid than the strict
scrutiny test applied to racial discrimination, elevated gender to a protected constitutional category.
The case also led the Court to be more receptive to claims from other types of groups that they had faced
unconstitutional discrimination.
The Supreme Court entered the debate on affirmative action in the 1970s, approving several plans under
federal law designed to end discrimination in hiring. In 1978 in the widely discussed reverse-
discrimination case Regents of the University of California v. Bakke, the Court upheld the claim of a
white applicant to a public medical school that he had been unconstitutionally denied admission solely
on the basis of race. Yet in that same case, the sharply divided Court approved the use of race as one of
the criteria in selecting applicants. In several later cases, it upheld affirmative action hiring plans
designed to foster racial and ethnic diversity in the workplace. It limited affirmative action programs in
some others, however. In 2003, in Grutter v. Bollinger, the Court reaffirmed the Bakke decision, ruling
that society has a compelling interest in assuring racial diversity on college campuses. It was the
Courts first major ruling on affirmative action since Bakke.
Under Chief Justice Burger, the Supreme Court showed a conservative streak only in cases involving the
procedural rights of criminal suspects and defendants. But even in these cases the Court rarely overruled
the Warren Courts expansion of these rights. Instead, the Court either refused to extend the logic of the
prior cases to new areas, or it limited the scope of the protections that had been granted. In some
instances it seemed even more willing to restrict the power of the states. In Furman v. Georgia in 1972,
for example, the Court temporarily struck down the death penalty based on the Eighth Amendments
prohibition of cruel and unusual punishment. But the Court soon overturned its moratorium on capital
punishment after states enacted laws with safeguards against arbitrary sentencing decisions.
The Supreme Court moved in a generally conservative direction after President Ronald Reagan
promoted William H. Rehnquist from associate to chief justice in 1986. With three other Reagan
appointees usually voting with him, Rehnquist was able to overturn some important precedents. Under
Rehnquist, the Court served notice that it would take a dim view of most affirmative action policies. In
1995, for example, it ruled in Adarand Constructors v. Pea that the strict scrutiny test should apply to
all race-based legislation, including affirmative action laws that favored disadvantaged groups.
The Rehnquist Court also curtailed the possibilities of habeas corpus appeals, making it much more
difficult for state prisoners to take appeals on constitutional grounds to the federal courts. The Court
continued to limit the procedural rights of individuals accused of crimes and to accord law enforcement
officials broad discretion. In the area of personal liberty, in the 1986 case of Bowers v. Hardwick the
Court refused to extend the right to privacy and approved a Georgia ban on sodomy. This decision was
later overturned in 2003 in Lawrence v. Texas. In State of Washington v. Glucksberg in 1997 the Court
determined that the federal constitution does not guarantee an individual the choice to end his or her life
and upheld a state law prohibiting assisted suicide. In the politically charged debate over census-taking
methods, in 1998 the Court ruled that, for purposes of apportioning congressional seats among the
states, federal law prohibited the Census Bureau from supplementing its traditional door-to-door
surveys with statistical sampling methods.
But during the 1980s and 1990s, the Court also surprised many observers with some relatively liberal
opinions. Despite its narrow interpretation of privacy in Bowers v. Hardwick, in 1992 the Court
reaffirmed the right to an abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey.
Under the doctrine of separation of powers, it decided in the 1988 case of Morrison v. Olson to uphold
the federal law permitting the appointment of special prosecutors to investigate federal officials (see
Independent Counsel Act).
The Court also extended the principle of nondiscrimination on the basis of sex and sexual preference.
G. Conservative Inclinations Under Rehnquist
The Court ruled in United States v. Virginia in 1996 that the Virginia Military Institute, a prestigious
public military academy, had to admit women. The Court also staked out potential new ground in Romer
v. Evans in 1996 when it rejected an amendment to the Colorado state constitution that politically
discriminated against lesbians and gays. However, two years later the Court refused to hear a challenge
to a voter initiative that barred the city of Cincinnati, Ohio, from passing legislation to protect gays from
discrimination.
In 1998 the Court issued a series of rulings regarding sexual harassment that broadly defined an
employers liability (financial responsibility) when supervisory employees harass subordinates. Also that
year and in subsequent terms, the Court considered several cases related to the Americans with
Disabilities Act (ADA), which prohibits discrimination against people with disabilities. The Courts
decisions in these cases narrowed the class of people who may be considered disabled under the ADA,
clarified what constitutes discrimination under the law, and limited the ability of disabled state workers
to sue states for employment discrimination under the ADA.
Under Rehnquist, the Court generally looked unfavorably on federal laws that imposed a burden on the
states. In the 1990s and 2000 the Court issued a series of controversial decisions that curtailed federal
power and boosted states rights. In 1992, in New York v. United States, the Court ruled unconstitutional
a federal law requiring states to regulate radioactive waste generated within their borders. In 1997, in
Printz v. United States, the Court said that the federal government could not compel local law-
enforcement officials to conduct background checks of handgun purchasers.
In 1999 the Court issued its most sweeping decisions to date on states rights. In three related cases, the
Court decided that states retain a residuary and inviolable sovereignty that gives them broad
immunity, in both state and federal courts, from lawsuits brought against them under federal law. In
these casesAlden v. Maine, Florida Prepaid Postsecondary Education Expense Board v. College
Savings Bank, and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board
the Court found that states cannot be sued for violations of federal laws regulating overtime wages,
patent infringement, and false advertising. The three cases, each decided by the same 5 to 4 majority,
exposed a deep rift between the Courts conservative and liberal members.
In 2000 and 2001 the Court continued its shift toward states rights by ruling that states cannot be sued
for violating a federal law barring age discrimination and by shielding states from certain employment-
discrimination lawsuits based on the ADA. However, the Court also ruled that Congress has the
authority to prohibit states from selling personal information on drivers licenses.
In 2000 the Court became embroiled in one of the closest and most contentious presidential elections in
U.S. history. In the hours and days following Election Day, November 7, neither Democratic candidate Al
Gore nor Republican candidate George W. Bush could claim victory due to an extremely close race in the
state of Florida. In order to gain the 270 electoral votes necessary to capture the presidency, each
candidate needed to win the Florida popular vote and thus the states 25 electoral votes. A mandated
machine recount of Floridas votes put Bush in the lead by only hundreds of votes out of about 6 million
cast, and Gore requested hand recounts of ballots in four heavily Democratic counties. When some of
these counties failed to complete their manual recounts by an election certification deadline, Gore filed
an election contest to challenge the official certification of Bush as the winner. On December 8 the
Florida Supreme Court ordered a statewide manual recount of undervotes, or ballots on which machines
failed to register a vote for president. Bush appealed this decision to the U.S. Supreme Court, and on
December 9 the Court, by a 5-to-4 vote, halted these manual recounts while it considered the case.
On December 12 the U.S. Supreme Court reversed the Florida courts decision, effectively sealing Bushs
victory. Seven of the nine justices found the court-ordered recount unconstitutional. They concluded that
the use of different standards by different counties to determine a legal vote violates a voters right to
equal protectionthat is, the right for all voters to be treated equally. However, the Court split 5 to 4 on
the issue of whether to permit further counting under more uniform standards, with the majority ruling
that a recount could not be completed constitutionally before a December 12 deadline for the state to
choose its electors. The dissenting justices argued that the Court was wrong to involve itself in a state
election dispute and that its split decision risked the credibility of the Court.
In 2003 the Court issued two landmark decisions on affirmative action. In Grutter v. Bollinger, the
Court upheld an affirmative action program at the University of Michigan Law School designed to
increase enrollment of minorities. The ruling reaffirmed its finding in the 1978 Bakke case that the state
has a compelling interest in promoting racial diversity in higher education. However, in Gratz v.
Bollinger, the Court rejected an affirmative action program used in undergraduate admissions at the
University of Michigan. The undergraduate program used a point system to weigh applicants, with large
numbers of points automatically awarded to minority applicants. In contrast, the Court found that the
law schools admissions policy was narrowly tailored and evaluated each applicant as an individual,
with race considered as one of many factors. See Affirmative Action.
In another landmark 2003 case, Lawrence v. Texas, the Court overturned a law in Texas that
criminalized sodomy (oral and anal sex) among gay couples. The Court reversed its 1986 decision in
Bowers v. Hardwick that upheld a similar statute in Georgia. Five of the justices found that the Texas
sodomy law violated the privacy rights of gays under the Due Process Clause of the Constitutions 14th
Amendment, which prohibits states from depriving people of life, liberty, and property. A sixth justice,
Sandra Day OConnor, concurred with the majority but based her ruling on the Equal Protection Clause
of the 14th Amendment, saying that the Texas law discriminated because it was aimed exclusively at
gays.
In 2004 the Supreme Court considered the constitutionality of the governments policies on detaining
terrorism suspects. Following the terrorist attacks on the United States on September 11, 2001 (see
September 11 Attacks), the U.S. military detained as enemy combatants hundreds of foreign nationals
who were captured during hostilities in Afghanistan and elsewhere and held at Guantnamo Bay, Cuba.
Two U.S. citizens were also classified as enemy combatants. Acting under the authority of the president,
the military claimed the right to imprison and interrogate such individuals indefinitely without access to
a lawyer or any court. However, in two key casesHamdi v. Rumsfeld and Rasul v. Bushthe Court
rejected such expansive presidential powers. Although the Court upheld the presidents authority to
classify both citizens and noncitizens as enemy combatants, it ruled that the government must allow
them lawyers and the right to challenge their detention in court. OConnor wrote in Hamdi: We have
long since made clear that a state of war is not a blank check for the President when it comes to the
rights of the Nations citizens.
In June 2005 the Supreme Court ruled 6 to 3 in Gonzales v. Raich that federal antidrug laws take
precedence over state laws authorizing the medical use of marijuana. Voters in 11 states had approved
so-called medical marijuana laws. The first was Californias Compassionate Use Act in 1996. These laws
generally allow patients with diseases such as cancer and acquired immunodeficiency syndrome (AIDS)
to grow and use marijuana with a physicians approval for medical purposes. Although the Courts ruling
in Gonzales v. Raich did not overturn the state laws, it did override any provisions in those laws
exempting patients in possession of medical marijuana from federal prosecution under the Controlled
Substances Act (part of the Comprehensive Drug Abuse Prevention and Control Act of 1970). In its
majority opinion, the Court held that the commerce clause of the U.S. Constitution gives Congress the
power to prohibit the local cultivation and use of marijuana, even if those activities comply with state law
for medical use and the drug does not cross state lines. The dissenting justices, including Chief Justice
Rehnquist, warned that an expansive interpretation of the commerce clause would allow federal
encroachment of states rights.
On July 1, 2005, Associate Justice OConnor announced her retirement, effective upon the confirmation
of a successor. Her resignation created the first opening on the Court in 11 years and provided President
Bush his first opportunity to name a Supreme Court justice. Bush named federal appeals court judge
John G. Roberts, Jr., to replace OConnor. However, Chief Justice Rehnquist died prior to the
confirmation hearings for Roberts, and Bush decided to renominate Roberts for chief justice. In
September 2005 the U.S. Senate voted 78-22 to confirm Roberts, making him the 17th chief justice of the
Court. In January 2006 the Senate voted 58-42 to confirm Samuel A. Alito, Jr., to replace OConnor.
The Court returned to the issue of presidential power in the war on terror in June 2006 when it ruled 5
to 3 in Hamdan v. Rumsfeld that special military tribunals or commissions established by President
Bush to try the Guantnamo detainees violated a federal statute, the Uniform Code of Military Justice,
and the Geneva Conventions. Roberts did not take part in the decision because he had issued a previous
H. Bush Appointments and the Advent of the Roberts Court
ruling in the case, which upheld the Bush administration, while serving as an appeals court judge. The
Court rejected the appeals court decision that the Geneva Conventions did not apply because the
defendant in the case, Salim Ahmed Hamdan, a suspected al-Qaeda terrorist, was not a party to the
Geneva Conventions. Instead the Court, in a majority opinion written by Justice John Paul Stevens,
found that Common Article 3 of the Geneva Conventions provided protections for Hamdan, including
the right to judicial guarantees that the military commissions denied, such as the right to be present at
his trial and to be privy to the evidence against him. The dissenting justicesAlito, Scalia, and
Thomasargued that the Detainee Treatment Act, passed by Congress in December 2005, prevented the
Court from hearing the case, an issue that the majority addressed and dismissed. Thomas further argued
that the majority decision openly flouts our well-established duty to respect the Executives judgment in
matters of military operations and foreign affairs. But Justice Stephen G. Breyer in a concurring opinion
for the majority noted that the Courts ruling was consistent with earlier decisions that Congress had not
issued the president a blank check in the war on terror.
In April 2007 the Court issued a landmark environmental ruling and its first ruling relating to the issue
of global warming. In Massachusetts et al. v. Environmental Protection Agency et al., the Court rejected
the Bush administrations argument that the Environmental Protection Agency (EPA) had no business
regulating greenhouse gas emissions from automobiles and trucks. According to the EPA, greenhouse
gases were not pollutants as defined by the Clean Air Act. In a 5 to 4 decision, the Court found just the
opposite: that such gases were pollutants under the law and that the EPA had a responsibility to regulate
them unless it could show a scientific basis for refuting their contribution to global warming. The
majority opinion was written by Stevens, who was joined by Bader Ginsburg, Breyer, Anthony Kennedy,
and David Souter. Chief Justice Roberts wrote the dissent and was joined by Alito, Scalia, and Thomas
who argued against the decision on narrow legal grounds. Roberts wrote that the state of Massachusetts
and other plaintiffs (a broad coalition of states, cities, and environmental groups) lacked standing in the
case. Since the plaintiffs lacked standing, Roberts declared, the courts had no business intervening.
Stevens countered the legal argument regarding standing by noting that the original plaintiff, the state of
Massachusetts, clearly met the three criteria required, including the requirement to show the risk of
injuryin this case, rising sea levels that threaten its coast.
In a number of decisions following the confirmations of Alito and Roberts to the Court, Justice Kennedy
appeared to emerge as the Courts swing vote, a role previously played by Justice OConnor. Kennedy
proved to be pivotal in deciding a number of cases, aligning himself either with the Courts conservative
blocmade up of Alito, Roberts, Scalia, and Thomasor its liberal or moderate wing, made up of Bader
Ginsburg, Breyer, Stevens, and Souter.
For many observers of the Court, Kennedys new role raised questions about whether the Court would
continue to uphold one of its most controversial decisions, the 1973 Roe v. Wade ruling that legalized
abortion in the United States for the first time. Those questions were partially answered in April 2007
when the Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003, which outlaws a
medical procedure known as intact dilation and extraction. Previously, in a 2000 decision, Stenberg v.
Carhart, the Court had struck down a similar law passed by the Nebraska legislature. Kennedy opposed
the Courts ruling in Stenberg v. Carhart, which was written by OConnor, but in 2007 he suddenly
found himself in the majority.
In Gonzales v. Planned Parenthood and Gonzales v. Carhart, the Court upheld for the first time since
Roe a ban on an abortion procedure. In his majority opinion Kennedy argued that the decision actually
followed precedent because the Courts ruling in 2000 focused on the vagueness of the Nebraska law and
its failure to address exceptions for safeguarding a womans health. These issues were addressed,
Kennedy argued, in the congressional legislation of 2003 because its definition of partial birth abortion
was more exact and it allowed for the procedure to be performed in the event of a threat to a pregnant
womans life. Nevertheless, a stinging dissent by Bader Ginsburg argued that the majority opinion was
openly hostile to the right to an abortion and disregarded previous precedent. Bader Ginsburg
maintained that there was a significant difference between an exemption for a womans health and an
exemption to protect her life. Supporters of the right to an abortion warned that the Courts ruling
opened the way for a reversal of Roe v. Wade.
The Court again examined the issue of the Guantnamo detainees in June 2008 and issued its third
consecutive rebuke of the Bush administrations policies regarding the detainees. In a 5-to-4 ruling, the
Court found in Boumediene v. Bush that the detainees were entitled to habeas corpus rights in declaring
a provision of the Military Commissions Act unconstitutional. A section of the law had attempted to deny
jurisdiction to federal courts in hearing challenges by the Guantnamo prisoners to their designation as
enemy combatants. The Court found this provision a violation of the separation of powers inherent in
the Constitution. Justice Anthony Kennedy, in his opinion for the majority, echoed the principle of
judicial review laid down in Marbury v. Madison, writing: To hold that the political branches may
switch the Constitution on or off at will would lead to a regime in which they, not this Court, say what
the law is. The dissenting justices, led by Antonin Scalia, called the majority decision a form of judicial
activism, and Scalia warned that it would lead to American deaths in the war on terror. The laws and
Constitution are designed to survive, and remain in force, in extraordinary times, Kennedys opinion
countered, adding: Liberty and security can be reconciled; and in our system they are reconciled within
the framework of the law. The Framers decided that habeas corpus, a right of first importance, must be a
part of that framework, a part of that law.
The end of the Courts term in 2008, coming in a presidential election year, resulted in other landmark
decisions, including the first Supreme Court ruling ever to address explicitly how the language of the
Constitutions Second Amendment should be interpreted. The amendment reads:
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep
and bear Arms, shall not be infringed. The only previous Supreme Court ruling on the Second
Amendment, the 1939 decision in United States v. Miller, was long regarded by many legal scholars as
ambiguous in resolving the issue of whether the amendment established the right of an individual to own
weapons for their own personal use or whether it merely gave an individual belonging to a militia force,
such as the National Guard, the right to bear arms. In District of Columbia v. Heller, issued in June
2008, the Court ruled 5 to 4 in favor of the individual right to own weapons for personal protection or
recreational use. In the majority opinion written by Justice Scalia, the Court struck down a District of
Columbia law that banned ownership of handguns in an attempt to promote public safely. See also Gun
Control.
The decision allowed governments to impose some restrictions on gun ownership, however. Justice
Scalia wrote: Nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the
possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in
sensitive places such as schools and government buildings, or laws imposing conditions and
qualifications on the commercial sale of arms. The ruling also specifically approved restrictions on
concealed weapons and dangerous and unusual weapons that are not necessary for personal protection
or recreational activities, such as hunting. Nevertheless, Scalia argued that the operative wording in the
Second Amendment was the right of the people to keep and bear Arms. In his dissenting opinion
Justice John Paul Stevens took issue with this interpretation, noting that the framers of the Constitution
had avoided using language related to the right to use firearms for hunting or personal self-defense. At
the time the Constitution was written, Stevens argued, two states, Pennsylvania and Vermont, had
explicitly endorsed such rights. The framers had avoided using the same language because they believed
the right to bear arms was given only in association with militias, Stevens maintained. The contrast
between the declarations of the two states and the language in the Second Amendment, Stevens wrote,
confirms that the Framers single-minded focus in crafting the constitutional guarantee to keep and
bear arms was on military uses of firearms, which they viewed in the context of service in state militias.
Contributed By:
Jethro K. Lieberman, B.A., J.D., Ph.D.
Associate Dean for Academic Affairs and Professor of Constitutional Law, New York Law School. Author of A Practical
Companion to the Constitution: How the Supreme Court Has Ruled on Issues from Abortion to Zoning and The Enduring
Constitution.

"Supreme Court of the United States," Microsoft Encarta Online Encyclopedia 2009
http://encarta.msn.com 1997-2009 Microsoft Corporation. All Rights Reserved.
1993-2009 Microsoft Corporation. All Rights Reserved.

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