The Supreme Court of the United States is the highest judicial body in the United States, and leads the federal judiciary. It consists of the Chief Justice of the United States and eight Associate Justices, who are nominated by the President and confirmed with the "advice and consent" of the Senate. Justices serve "during good Behaviour," which terminates at death, resignation, retirement, or conviction on impeachment. The Court meets in Washington, D.C. in the United States Supreme Court building. The Supreme Court is primarily an appellate court, but has original jurisdiction in a small number of cases.
That changed during the Marshall Court (1801–1836), which declared the Court to be the supreme arbiter of the Constitution (see Marbury v. Madison) and made a number of important rulings which gave shape and substance to the constitutional balance of power between the federal government (referred to at the time as the "general" government) and the states. In Martin v. Hunter's Lessee, the Court ruled that it had the power to correct interpretations of the federal Constitution made by state supreme courts. Both Marbury and Martin confirmed that the Supreme Court was the body entrusted with maintaining the consistent and orderly development of federal law.
The Marshall Court ended the practice of each judge issuing his opinion seriatim, a remnant of British tradition, and instead one majority opinion of the Court was issued. The Marshall Court also saw Congress impeach a sitting Justice, Samuel Chase, who was acquitted. This impeachment was one piece of the power struggle between the Democratic-Republicans and the Federalists after the election of 1800 and the subsequent change in power. The failure to remove Chase is thought to signal the recognition by Congress of judicial independence.
The Taney Court (1836–1864) made a number of important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. However, it is primarily remembered for its ruling in Dred Scott v. Sandford, the case which may have helped precipitate the Civil War. In the years following the Civil War, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution, and developed the doctrine of substantive due process (Lochner v. New York; Adair v. United States).
Under the White and Taft Courts (1910–1930), the substantive due process doctrine reached its first apogee (Adkins v. Children's Hospital), and the Court held that the Fourteenth Amendment applied some provisions of the Bill of Rights to the states through the Incorporation doctrine.
During the Hughes, Stone, and Vinson Courts (1930–1953), the court gained its own accommodation and radically changed its interpretation of the Constitution in order to facilitate the New Deal (West Coast Hotel Co. v. Parrish, Wickard v. Filburn), giving an expansive reading to the powers of the Federal Government.
The Warren Court (1953–1969) made a number of alternately celebrated and controversial rulings expanding the application of the Constitution to civil liberties, leading a renaissance in substantive due process. It held that segregation in public schools is unconstitutional (Brown v. Board of Education); the Constitution protects a general right to privacy (Griswold v. Connecticut); public schools cannot have official prayer (Engel v. Vitale), or mandatory Bible readings (Abington School District v. Schempp); many guarantees of the Bill of Rights apply to the states (e.g., Mapp v. Ohio, Miranda v. Arizona); an equal protection clause is not contained in the Fifth Amendment (Bolling v. Sharpe); and that the Constitution grants the right of retaining a court appointed attorney for those too indigent to pay for one (Gideon v. Wainwright).
The Burger Court (1969–1986) ruled that abortion was a constitutional right (Roe v. Wade), reached controversial rulings on affirmative action (Regents of the University of California v. Bakke) and campaign finance regulation (Buckley v. Valeo), and held that the implementation of the death penalty in many states was unconstitutional (Furman v. Georgia), but that the death penalty itself was not unconstitutional (Gregg v. Georgia).
The Rehnquist Court (1986–2005) will primarily be remembered for its revival of the concept of federalism, which included restrictions on Congressional power under both the Commerce Clause (United States v. Lopez, United States v. Morrison) and the fifth section of the Fourteenth Amendment (City of Boerne v. Flores), as well as the fortification of state sovereign immunity (Seminole Tribe v. Florida, Alden v. Maine). It will also be remembered for its 5 to 4 decision in Bush v. Gore which ended the electoral recount during the presidential election of 2000 and led to the presidency of George W. Bush. In addition, the Rehnquist court decriminalized homosexual sex (Lawrence v. Texas); narrowed the right of labor unions to picket (Lechmere Inc. v. NLRB); altered the Roe v. Wade framework for assessing abortion regulations (Planned Parenthood v. Casey); and gave sweeping meaning to ERISA pre-emption (Shaw v. Delta Air Lines, Inc., Egelhoff v. Egelhoff), thereby denying plaintiffs access to state courts with the consequence of limiting compensation for torts to very circumscribed remedies (Aetna Health Inc. v. Davila, CIGNA Healthcare of Texas Inc. v. Calad); and affirmed the power of Congress to extend the term of copyright (Eldred v. Ashcroft).
The Roberts Court (2005–present) began with the confirmation and swearing in of Chief Justice John G. Roberts on September 29, 2005, and is the currently presiding court. The Court under Chief Justice Roberts is perceived as moving towards the conservative end of the spectrum. Some of the major rulings so far have been in the areas of abortion (Ayotte v. Planned Parenthood, Gonzales v. Carhart); anti-trust legislation (Leegin Creative Leather Products, Inc. v. PSKS, Inc.); the death penalty (Baze v. Rees, Kennedy v. Louisiana); the Fourth Amendment (Hudson v. Michigan); free speech of government employees and of high school students (Garcetti v. Ceballos, Morse v. Frederick); military detainees (Hamdan v. Rumsfeld, Boumediene v. Bush); school desegregation (Parents v. Seattle); voting rights (Crawford v. Marion County Election Board); and the Second Amendment (District of Columbia v. Heller).
The practice of the nominee being questioned in person by the Committee is relatively recent. The first nominee to testify before the Committee was Harlan Fiske Stone in 1925. Some western senators were concerned with his links to Wall Street and expressed their opposition when Stone was nominated. Stone proposed what was then the novelty of appearing before the Judiciary Committee to answer questions; his testimony helped secure a confirmation vote with very little opposition. The second nominee to appear before the Committee was Felix Frankfurter, who only addressed (at the Committee's request) what he considered to be slanderous allegations against him. The modern practice of the Committee questioning nominees on their judicial views began with the nomination of John Marshall Harlan II in 1955; the nomination came shortly after the Court handed down the landmark Brown v. Board of Education decision, and several Southern senators attempted to block Harlan's confirmation, hence the decision to testify.
Once the committee reports out the nomination, the whole Senate considers it; a simple majority vote is required to confirm or to reject a nominee. Rejections are relatively uncommon; the Senate has explicitly rejected only twelve Supreme Court nominees in its history. The most recent rejection of a nominee by vote of the full Senate came in 1987, when the Senate refused to confirm Robert Bork.
Not everyone nominated by the President has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a Supreme Court nomination, a nominee may be filibustered once debate on the nomination has begun in the full Senate. A filibuster indefinitely prolongs the debate thereby preventing a final vote on the nominee. While senators may attempt to filibuster a Supreme Court nominee in an attempt to thwart confirmation, no nomination for Associate Justice has ever been filibustered. However, President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968.
It is also possible for the President to withdraw a nominee's name at any time before the actual confirmation vote occurs. This usually happens when the President feels that the nominee has little chance of being confirmed: most recently, President George W. Bush withdrew his nomination of Harriet Miers before committee hearings had begun, citing concerns about Senate requests during her confirmation process for access to internal Executive Branch documents resulting from her position as White House Counsel. In 1987, President Ronald Reagan withdrew the nomination of Douglas H. Ginsburg because of allegations of marijuana use.
Until 1981, the approval process of Justices was frequently quick. From the Truman through Nixon administrations, Justices were typically approved within one month. From the Reagan administration through the current administration of George W. Bush, however, the process took much longer. Some speculate this is because of the increasingly political role Justices are said to play.
Because Justices have indefinite tenure, it is impossible to predict when a vacancy will next occur. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Powell and William H. Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other because of health problems and died shortly thereafter. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the departures of Chief Justice Rehnquist and Justice O'Connor (by death and retirement, respectively) in 2005.
Despite the variability, all but four Presidents so far have been able to appoint at least one Justice. The exceptions are William Henry Harrison, Zachary Taylor, Andrew Johnson, and Jimmy Carter. Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Taylor likewise died early in his presidential term and an appointment was made before the term ended by Millard Fillmore. Johnson succeeded the assassinated Lincoln, and he was denied the opportunity to appoint a Justice by congressional action (see Size of the Court earlier in this article). Carter is the only president to serve a full term without the opportunity to appoint at least one Justice.
|Name||Born||Appt. by||Conf. vote||First day||Prior positions|
|John Roberts (Chief Justice)||(age ) in Buffalo, New York||G.W. Bush||78-22||Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005); Private practice (1993–2003); Professor, Georgetown University Law Center (1992–2005); Principal Deputy Solicitor General (1989–1993); Private practice (1986–1989); Associate Counsel to the President (1982–1986); Special Assistant to the Attorney General (1981–1982)|
|John Paul Stevens||(age ) in Chicago, Illinois||Ford||98-0||Circuit Judge, Court of Appeals for the Seventh Circuit (1970–1975); Private practice (1948–1970); Lecturer, University of Chicago Law School (1950–1954); Lecturer, Northwestern University School of Law (1954–1958)|
|Antonin Scalia||(age ) in Trenton, New Jersey||Reagan||98-0||Circuit Judge, Court of Appeals for the D.C. Circuit (1982–1986); Professor, University of Chicago Law School (1977–1982); Assistant Attorney General (1974–1977); Professor, University of Virginia School of Law (1967–1974); Private practice (1961–1967)|
|Anthony Kennedy||(age ) in Sacramento, California||Reagan||97-0||Circuit Judge, Court of Appeals for the Ninth Circuit (1975–1988); Professor, McGeorge School of Law, University of the Pacific (1965–1988); Private practice (1963–1975)|
|David Souter||(age ) in Melrose, Massachusetts||G.H.W. Bush||90-9||Circuit Judge, Court of Appeals for the First Circuit (1990–1990); Associate Justice, New Hampshire Supreme Court (1983–1990); Associate Justice, New Hampshire Superior Court (1978–1983); Attorney General of New Hampshire (1976–1978); Deputy Attorney General of New Hampshire (1971–1976); Assistant Attorney General of New Hampshire (1968–1971); Private practice (1966–1968).|
|Clarence Thomas||(age ) in Pin Point, Georgia||G.H.W. Bush||52-48||Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991); Chairman, Equal Employment Opportunity Commission (1982–1990); Legislative Assistant for Missouri Senator John Danforth (1979–1981); employed by Monsanto Inc. (1977– 1979); Assistant Attorney General of Missouri under State Attorney General John Danforth (1974–1977)|
|Ruth Bader Ginsburg||(age ) in Brooklyn, New York||Clinton||97-3||Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993); General Counsel, American Civil Liberties Union (1973–1980); Professor, Columbia Law School (1972–1980); Professor, Rutgers University School of Law (1963–1972)|
|Stephen Breyer||(age ) in San Francisco, California||Clinton||87-9||Chief Judge, Court of Appeals for the First Circuit (1990–1994); Circuit Judge, Court of Appeals for the First Circuit (1980–1990); Professor, Harvard Law School (1967–1980)|
|Samuel Alito||(age ) in Trenton, New Jersey||G.W. Bush||58-42||January 31, 2006||Circuit Judge, Court of Appeals for the Third Circuit (1990–2006); Professor, Seton Hall University School of Law (1999–2004); U.S. Attorney for the District of New Jersey (1987–1990); Deputy Assistant Attorney General (1985–1987); Assistant to the Solicitor General (1981–1985); Assistant U.S. Attorney for the District of New Jersey (1977–1981)|
Currently, there is only one retired Justice of the Supreme Court, Sandra Day O'Connor, who announced her intent to retire in 2005 and was replaced by Samuel Alito in 2006. As a retired Justice, Justice O'Connor may be, and has been, designated for temporary assignments to sit with several United States Courts of Appeals. Nominally, such assignments are made by the Chief Justice; they are analogous to the types of assignments that may be given to judges of lower courts who have elected senior status, except that a retired Supreme Court Justice never sits as a member of the Supreme Court itself.
|Name||Born||Appt. by||Conf. vote||First day||Senior Status|
|Sandra Day O'Connor||(age ) in Arizona||Reagan||99-0||September 25, 1981||January 31, 2006|
In the Justices' private conferences, the current practice is for Justices to speak and vote in order of seniority from the Chief Justice first to the most junior Associate Justice last. The most junior Associate Justice in these conferences is tasked with any menial labor the Justices may require as they convene alone, generally limited to answering the door of their conference room and serving coffee. In addition, it is the duty of the most junior Associate Justice to transmit the orders of the court after each private conference to the court's clerk. Justice Joseph Story served the longest as the junior Justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows close behind, falling just 29 days shy of Justice Story's record when Justice Samuel Alito joined the court on January 31, 2006.
Seven of the current justices of the court were appointed by Republican presidents, while two were appointed by a Democratic president. It is popularly accepted that Chief Justice Roberts and Justices Scalia, Thomas, and Alito compose the Court's conservative wing. Justices Stevens, Souter, Ginsburg and Breyer are generally thought of as the Court's liberal wing. Justice Kennedy, generally thought of as a conservative who "occasionally vote[s] with the liberals", is considered most likely to be the swing vote that determines the outcome of certain close cases.
The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City, which then was the national capital. Philadelphia became the capital city later in 1790, and the Court followed Congress and the President there, meeting briefly in Independence Hall, and then from 1791 to 1800 at Old City Hall at 5th and Chestnut Streets. After Washington, D.C., became the capital in 1800, the Court occupied various spaces in the United States Capitol building until 1935, when it moved into its own purpose-built home at One First Street Northeast, Washington, DC. The four-story building was designed in a classical style sympathetic to the surrounding buildings of the Capitol complex and Library of Congress by architect Cass Gilbert, and is clad in marble quarried chiefly in Vermont. The building includes space for the Courtroom, Justices' chambers, an extensive law library, various meeting spaces, and auxiliary services such as workshop, stores, cafeteria and a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own police force, the Supreme Court Police, separate from the Capitol Police.
Section 2 of Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:
The 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; to all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.
The jurisdiction of the federal courts was further limited by the Eleventh Amendment, which forbade the federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (see Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to "Regulat[e]" the court's jurisdiction: for example, the federal courts may consider "Controversies ... between Citizens of different states only if the amount in controversy exceeds $75,000; otherwise, the case may only be brought in state courts.
Exercise of this power (for example, the Detainee Treatment Act, which provided that "'no court, justice, or judge' shall have jurisdiction to consider the habeas application of a Guantanamo Bay detainee") can become controversial; see Jurisdiction stripping
The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Supreme Court has only appellate jurisdiction. The Supreme Court considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.
The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are a variety of devices that permit so-called "collateral review" of state cases.
Because, under Article III, federal courts may only entertain "cases" or "controversies", the Court avoids deciding cases that are moot and does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard, , the Court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the Court on his claim would not be able to redress any injury he had suffered. The mootness exception is not absolute; if an issue is "capable of repetition yet evading review", the Court will address it even though the party before the Court would not himself be made whole by a favorable result. In Roe v. Wade, , and other abortion cases, the Court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer to appeal a case through the lower courts to the Supreme Court than the typical human gestation period.
Under the Judiciary Act of 1789, each Justice was required to "ride circuit," or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many Justices, who complained about the difficulty of travel. Moreover, several individuals opposed it on the grounds that a Justice could not be expected to be impartial in an appeal if he had previously decided the same case while riding circuit. Circuit riding was abolished in 1891. Today, the duties of a "Circuit Justice" are generally limited to receiving and deciding requests for stays in cases coming from the circuit or circuits to which the Justice is assigned, and other clerical tasks such as addressing certain requests for extensions of time. A Circuit Justice may (but in practice almost never does) sit as a judge of that circuit. When he or she does so, a Circuit Justice has seniority over the Chief Judge of that circuit.
The Chief Justice is traditionally assigned to the District of Columbia Circuit, the Federal Circuit and the Fourth Circuit, which includes Maryland and Virginia, the states surrounding the District of Columbia. Each Associate Justice is assigned to one or two judicial circuits.
After Justice Alito's appointment, circuits were assigned as follows
The circuit assignments frequently, but do not always and need not, reflect the geographic regions where the assigned Justices served as judges or practitioners before joining the Supreme Court. Four of the current Justices are assigned to circuits on which they once sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Souter (First Circuit), Justice Stevens (Seventh Circuit), and Justice Kennedy (Ninth Circuit). Furthermore, Justices Thomas and Ginsburg are assigned to the circuits that include their home states (the Eleventh and Second Circuits, respectively).
There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee , a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval.
The common shorthand name for cases is typically the first party (the petitioner). For example, Brown v. Board of Education is referred to simply as Brown, and Roe v. Wade as Roe. The exception to this rule is when the name of a state, or the United States, or some government entity, is the first listed party. In that instance, the name of the second party is the shorthand name. For example, Iowa v. Tovar is referred to simply as Tovar, and Gonzales v. Raich is referred to simply as Raich, because the first party, Alberto Gonzales, was sued in his official capacity as the United States Attorney General.
A cert petition is voted on at a session of the Court called a conference. A conference is a private meeting of the nine Justices by themselves; the public is not permitted to attend, and neither are the Justices' law clerks. If four Justices vote to grant the petition, then the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.
The Court grants a petition for certiorari only for "compelling reasons," spelled out in the court's Rule 10. Such reasons include, without limitation:
When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split". If the Court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the final ruling in the case.
To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool." Currently, all justices except for Justice Stevens participate in the cert pool.
When the Court grants a cert petition, the case is set for oral argument. At this point, both parties file briefs on the merits of the case, as distinct from reasons the parties may urge for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has half an hour to present its argument, and during that time the Justices can and do interrupt the advocate and ask questions of their own. The petitioner goes first, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.
At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions, circulate among the Justices until the Court is prepared to announce the judgment in a particular case.
It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. If, because of recusals and vacancies, there is no quorum to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought directly to the Supreme Court by direct appeal from a United States District Court, the Chief Justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.
The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, a number of opinions are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that may cite this set of reporters -- or a competing version published by another commercial legal publisher -- to allow those who read their pleadings and other briefs to find the cases quickly and easily.
At present there are 545 volumes of U.S. Reports. Lawyers use an abbreviated format to cite cases, in the form xxx U.S. xxx (yyyy). The number before the "U.S." refers to the volume number, and the number after the U.S. refers to the page within that volume. The number in parentheses is the year in which the case was decided. For instance, if a lawyer wanted to cite Roe v. Wade, decided in 1973, and which appears on page 113 of volume 410 of U.S. Reports, he would write 410 U.S. 113 (1973).
The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"; however, this quotation is likely apocryphal. State militia in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Richard Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon, however, ultimately complied with the Supreme Court's ruling.
The Constitution provides that the salary of a Justice may not be diminished during his or her continuance in office. This clause was intended to prevent Congress from punishing Justices for their decisions by reducing their emoluments. Together with the provision that Justices hold office for good behavior, this clause helps guarantee judicial independence.
Howard Zinn presents the idea that the overall history of the Court, especially during the period between the Civil War and the Great Depression, should be viewed as one of mostly conservative activism in the defense of property rights. The best known example of conservative judicial activism is Lochner v. New York in 1905, a case that invalidated a New York law regulating the hours bakers could work as a violation of liberty of contract, a part of the doctrine of Substantive due process under the Fourteenth Amendment. This decision elevated the concept of "liberty of contract" to a dogmatic stance of the Court for over thirty years. On the other hand, starting primarily with the Supreme Court's 1961 decision in Mapp v. Ohio, which established the exclusionary rule in state criminal proceedings, many conservatives have portrayed the Supreme Court as a haven for liberal judicial activism. This has especially been the case since the advent of the Warren Court and the revolution in civil liberties, but the charge has continued to the Burger Court and even into the Rehnquist Court. The argument is that in the name of expanding the "rights" a majority of justices find agreeable, the Court is twisting the Constitution by disregarding the original meaning of the due process and equal protections clauses in order to reach a desired result. The best-known example of liberal activism is probably Roe v. Wade in 1973, where the Court struck down restrictive abortion laws as violating the "right to privacy" that the Court had previously found inherent in the Due Process clause of the Fourteenth Amendment.
According to Zinn, however, of the Courts extant in the 20th century, only the Stone, Vinson, Warren, and to a lesser extent the Burger Courts (a time frame ranging approximately from 1941 to 1986) could be seen as leaning more toward a liberal interpretation of the Constitution and its guarantees, but not in every opinion.
Liberal and conservative activism are both, at least as perceived by their opponents, abandoning the literal words of the Constitution in pursuit of what the Supreme Court considers to be the just or right or reasonable course of action. A campaign against judicial activism has been part of presidencies of many diverse ideological viewpoints, such as those of Franklin Delano Roosevelt, Richard Nixon, and Ronald Reagan.
In 1988 President Ronald Reagan lectured a convention of attorneys about, “…courts that played fast and loose with the instrument the founding fathers devised. Yes, some law professors and judges said the courts should save the country from the Constitution. We said it was time to save the Constitution from them.”
President Abraham Lincoln (referring to the Dred Scott v. Sandford decision) warned:
If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers, having to that extent practically resigned the government into the hands of that eminent tribunal. (Lincoln's First Inaugural Address, 1861).In Coercing Virtue: The Worldwide Rule of Judges (2003), Judge Robert Bork, argues:
What judges have wrought is a coup d’état, – slow-moving and genteel, but a coup d’état nonetheless…. The nations of the West are increasingly governed not by law or elected representatives, but by unelected, unrepresentative, unaccountable committees of lawyers applying no law other than their own will.In recent years, the term "judicial usurpation" has been used by many to describe what they consider to be aggressive judicial activism. During the two years following the publication of Bork’s book, no less than five books appeared on the subject of judicial usurpation. In 2005, Patrick Buchanan chronicled what he believed to be the Warren court's transgressions:
The Brown decision of 1954, desegregating the schools of 17 states and the District of Columbia, awakened the nation to the court's new claim to power. Hailed by liberal elites – and finding no resistance from a Democratic Congress or president who spent his afternoons at Burning Tree – Warren's court went off on a rampage. It invented new rights for criminals and put new restrictions on cops and prosecutors. It reassigned students to schools by race and ordered busing to bring it about, tearing cities apart. It ordered God, prayer and Bible-reading out of classrooms. It said pornography was constitutionally protected, making Larry Flynt and Al Goldstein First Amendment heroes, rather than felons. It ruled naked dancing a protected form of free expression. It declared abortion a constitutional right and sodomy constitutionally protected behavior. It outlawed the death penalty, abolished terms limits on members of Congress voted by state referendums, and told high school coaches to stop praying in locker rooms and students to stop saying prayers at graduation. It ordered the Ten Commandments out of schoolhouses and courthouses. It condoned discrimination against white students in violation of the 14th Amendment's guarantee of equal protection. And, two weeks ago, in a 5–4 decision, the Supreme Court ruled that towns can seize private homes and turn them over to private developers.
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