write an essay on american supreme court and justice review

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John Marshall, Marbury v. Madison, and Judicial Review

Statue of Chief Justice John Marshall outside the West entrance of the Philadelphia Museum of Art.

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"It is emphatically the province and duty of the judicial department to say what the law is." —Chief Justice John Marshall, in Marbury v. Madison , 1803

Who was the most influential American of the founding era of the United States: George Washington, due to his military and political achievements? Thomas Jefferson, for the Declaration of Independence and the acquisition of the Louisiana Purchase? James Madison, for his "writing" of the Constitution and subsequent service in the House of Representatives, as Secretary of State, and President? Or might it be John Marshall, who served as Chief Justice of the U.S. Supreme Court for 34 years, longer than any other Chief Justice, and whose ground-breaking decisions still affect the lives of every American?

This lesson is designed to help students understand Marshall's strategy in issuing his decision, the significance of the concept of judicial review, and the lasting significance of this watershed case.

Guiding Questions

What is the proper role of the Supreme Court regarding laws passed by Congress and state legislatures?

How has the establishment of judicial review shaped the power of the Supreme Court in U.S. history?

To what extent does the Supreme Court establish laws?

Learning Objectives

Explain the role and responsibilities of the Supreme Court with regard to interpreting the U.S. Constitution.

Analyze the competing perspectives that resulted in the Marbury v. Madison case.

Evaluate the lasting significance of Marbury v. Madison and judicial review.

Evaluate the nature of how a system of checks and balances has functioned and changed over time.

Lesson Plan Details

Until 1803, it was not a foregone conclusion that the Supreme Court of the United States would have the power to review laws, despite the fact that judicial review had its origins in early seventeen-century England and had been asserted by James Otis in the period leading up to the American Revolution. A relatively minor lawsuit led to one of the most important Supreme Court decisions in American history, Marbury v. Madison, laying the foundation for the Court's ability to render its decisions about laws and actions. In Marbury v. Madison , the Supreme Court claimed the power to review acts of Congress and the president and deem them unconstitutional, creating a precedent for an American process of judicial review. Through the decision of Chief Justice John Marshall, then, the court assumed the powers with which it has since played such a vital role in American life.

The above video from the History Channel on Marbury v. Madison illustrates why this is one of the most important cases in U.S. legal history. As such it is sometimes presented as a straightforward assertion of the power of the judiciary. In fact, it is a complex and complicated case, fully enmeshed in the politics of the time, demonstrating the political nature of Supreme Court decisions—then and now.

To teach this lesson, it is necessary for teachers to have background knowledge about the origins and facts of the case, which include passage of the Federal Judiciary Acts of 1789 and 1801, as well as the political struggle between the Federalists and the Democratic-Republicans in the 1790s. The article " The Trial of a Young Nation " by Charles Hobson, online courtesy of EDSITEment's creator the National Endowment for the Humanities , explains the political and historical context in which the case took place.

The key players in this case are:

Supreme Court Chief Justice John Marshall
William Marbury, a Maryland citizen who in 1801 sought to become justice of the peace for the District of Columbia
Secretary of State James Madison
Presidents John Adams (outgoing Federalist in 1801) and Thomas Jefferson (incoming Democrat Republican in 1801)
Charles Lee, Marbury's attorney

In brief, the case arose in the context of the political infighting between the outgoing Adams and incoming Jefferson administrations, particularly in the Federal judiciary. At the conclusion of Adams' administration, he appointed Federalists to many federal judicial positions in order to perpetuate his party's influence in the government. As soon as Jefferson's new administration took office, it repealed a law that had created many of these new judgeships, including that of Marbury, who subsequently sued Secretary of State Madison to deliver the commission that would allow him to assume his job. Marshall faced a dilemma. If the Court asserted its power and ruled that Madison had to give Marbury his commission, Jefferson was likely to instruct Madison to ignore the ruling, thereby showing the weakness of the court.

Marshall's decision offered something to everyone: it said that Marbury had a right to his appointment as the justice of the peace; chastised Jefferson (mildly, it is true) for not having given it to him; explained that Marbury had a right to try to reclaim what was offered to him; and then concluded with an explanation of why the Supreme Court could not provide a remedy. The Judiciary Act of 1789, which had granted the Supreme Court the power to issue orders to members of the government, was unconstitutional because it expanded the Court's role beyond what was permitted by the Constitution. As a result, the Court could not act on Marbury's behalf.

This case is significant because the Supreme Court for the first time declared an act of Congress unconstitutional. This decision was the foundation for the Supreme Court's power of "judicial review," the power by which the Court could determine the constitutionality of laws passed by Congress.

Finally, the term mandamus comes up in all articles about the case; it means: "The writ issued by a court of superior jurisdiction to an inferior tribunal, to a corporation, or to any person commanding the performance of some clear public duty imposed by law." (Webster's Third New International Dictionary)

NCSS.D1.1.9-12. Explain how a question reflects an enduring issue in the field.

NCSS.D2.Civ.3.9-12. Analyze the impact of constitutions, laws, treaties, and international agreements on the maintenance of national and international order.

NCSS.D2.Civ.4.9-12. Explain how the U.S. Constitution establishes a system of government that has powers, responsibilities, and limits that have changed over time and that are still contested.

NCSS. D2.Civ.8.9-12. Evaluate social and political systems in different contexts, times, and places, that promote civic virtues and enact democratic principles.

NCSS.D2.His.1.9-12. Evaluate how historical events and developments were shaped by unique circumstances of time and place as well as broader historical contexts.

NCSS.D2.His.2.9-12. Analyze change and continuity in historical eras.

NCSS.D2.His.3.9-12. Use questions generated about individuals and groups to assess how the significance of their actions changes over time and is shaped by the historical context.

Review the lesson plan and the websites used throughout. Locate and bookmark suggested materials and websites. Bookmark or download and print out documents you will use and duplicate copies as necessary for student viewing.
Article III of the Constitution , from the Avalon Project at Yale University , an EDSITEment-reviewed website;
The full text of the Marbury v. Madison decision is available through the Legal Information Institute at Cornell University , linked to History Matters , an EDSITEment-reviewed website;
A letter from Marshall in 1823 about his view of judicial review, linked to the EDSITEment-reviewed Digital History site.

Activity 1. What does Article III say?

"A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." — Alexander Hamilton, Federalist No. 78

This case is all about the power of the Supreme Court as outlined in the Constitution in relationship to the other two branches. So what does the Constitution say is the job of the Supreme Court? Students will read Article III, Section 2 of the Constitution and collect information in order to explain what they believe to be the job of the Supreme Court as defined in the Constitution. The short video below addresses the debate that occurred over judicial review at the time.

Leave time for discussion to ensure these questions are answered:

What is the job of the Supreme Court as described in Article III?
Is there any indication in this section that the Supreme Court has the "right" or "responsibility" to determine whether laws are constitutional—meaning whether they violate or go against what is written in the Constitution?
Is there any reference to the term "judicial review" in the Constitution?
Does Article III establish the limits of the Court's powers?

Activity 2. Marbury v. Madison

Students should read this background piece about Marbury v. Madison to get an overview of the details and complexities of the case. The teacher should pose these questions to students to ensure understanding of the background reading:

What was William Marbury's complaint and how did it arise?
What did Marbury hope to achieve by suing Secretary of State James Madison?
Who "won" the case?
What did this decision say about the role of the Supreme Court? Why is it still relevant to us today?

Activity 3. John Marshall's Opinion

What did John Marshall write about the power of the Supreme Court in the actual decision? In groups, with partners, or alone, students will do a close textual analysis of excerpts of the decision to understand Marshall's argument. They may use class time or analyze these excerpts as homework; a final discussion in-class will check students' understanding and sum up.

Part 1: What is the relationship of the Constitution to ordinary laws? Students will read these paragraphs and collect information in order to provide an explanation of Marshall's point of view on this question. Teachers may want to explore the differences between a Constitution and statutory law, at this time, if it is something with which their students are not familiar.

Excerpted from Marbury v. Madison :

"The authority, therefore, given to the Supreme Court by the act establishing the judicial courts of the United States to issue writs of mandamus to public officers appears not to be warranted by the Constitution, and it becomes necessary to inquire whether a jurisdiction so conferred can be exercised. The question whether an act repugnant to the Constitution can become the law of the land is a question deeply interesting to the United States, but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognize certain principles, supposed to have been long and well established, to decide it. That the people have an original right to establish for their future government such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority from which they proceed, is supreme, and can seldom act, they are designed to be permanent. This original and supreme will organizes the government and assigns to different departments their respective powers. It may either stop here or establish certain limits not to be transcended by those departments. The Government of the United States is of the latter description. The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested that the Constitution controls any legislative act repugnant to it, or that the Legislature may alter the Constitution by an ordinary act. Between these alternatives there is no middle ground. The Constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and, like other acts, is alterable when the legislature shall please to alter it. If the former part of the alternative be true, then a legislative act contrary to the Constitution is not law; if the latter part be true, then written Constitutions are absurd attempts on the part of the people to limit a power in its own nature illimitable. Certainly all those who have framed written Constitutions contemplate them as forming the fundamental and paramount law of the nation, and consequently the theory of every such government must be that an act of the Legislature repugnant to the Constitution is void. This theory is essentially attached to a written Constitution, and is consequently to be considered by this Court as one of the fundamental principles of our society. It is not, therefore, to be lost sight of in the further consideration of this subject. If an act of the Legislature repugnant to the Constitution is void, does it, notwithstanding its invalidity, bind the Courts and oblige them to give it effect? Or, in other words, though it be not law, does it constitute a rule as operative as if it was a law? This would be to overthrow in fact what was established in theory, and would seem, at first view, an absurdity too gross to be insisted on. It shall, however, receive a more attentive consideration."

Part II: What is the job of the Supreme Court in cases where a law passed by Congress contradicts/violates part of the Constitution? Based on their analysis, students will collect information to inform a rewriting of the paragraphs within this section, and then summarize what Marshall is saying.

"It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. If, then, the courts are to regard the constitution, and the constitution is superior to any ordinary act of the legislature, the constitution, and not such ordinary act, must govern the case to which they both apply. Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that the courts must close their eyes on the constitution, and see only the law. This doctrine would subvert the very foundation of all written constitutions. It would declare that an act which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence, with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure. That it thus reduces to nothing what we have deemed the greatest improvement on political institutions — a written constitution — would of itself be sufficient, in America, where written constitutions have been viewed with so much reverence, for rejecting the construction. But the peculiar expressions of the constitution of the United States furnish additional arguments in favour of its rejection. The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that in using it the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained…. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument."

Part III: Once students have analyzed the excerpts, the teacher should lead a discussion to ensure that ALL students have grasped the scope and significance of Marshall's decision. Teachers may want to consider these questions, among others:

First excerpt:

What has supremacy-the Constitution or ordinary laws?
How does the Constitution limit the power of legislative bodies?
Why is this limitation so important, in Marshall's view?
What would happen if the Constitution and "ordinary legislative acts" were on equal footing?

Second excerpt:

What does Marshall mean when he writes, "it is the duty of the judicial department to say what the law is"?
Why is this so fundamentally important to this case?
How does his reasoning in Part II support the theoretical foundation he established in Part I?

Activity 4. Alexander Hamilton on Judicial Review

Did Marshall's ideas about judicial review have support from other Founders? Students will read a collection of views on Federalist #78, to develop a position on Judicial Review. As another option, teachers may want their students to read Federalist #78 in its entirety.

Activity 5. Marshall's Later Defense of Judicial Review

At the time the decision in Marbury v. Madison was made and since then, opponents have challenged the Supreme Court's power to interpret the Constitution. In 1823, Marshall answered one of his critics, Senator Richard M. Johnson, who thought it should take more than a simple majority of the Supreme Court to declare a law unconstitutional.

Historians, lawyers, and judges are meeting to discuss the history of judicial review and you have been invited to give a presentation on the topic. Your presentation can be delivered as a paper, a multimedia storyboard, in character as a member of the U.S. government in 1803, or some other form of presenting information that addresses the following:

explain the context and importance of Marbury v. Madison ;
explain the role of the Supreme Court in interpreting the Constitution;
explain and evaluate the concept of judicial review;
cite one other example from history to illustrate your position on how the U.S. system of government has been affected by the establishment of judicial review.
Students should be encouraged to pursue Marshall's remarkable track record in a number of other historically significant cases, as well as his legacy.
What were the political dynamics of the era—and how does this case fit into that context? Students should already have some background about the fight between Federalists and Democratic-Republicans from their study of the 1790s. The following excerpt from Jefferson's speech at his 1801 inauguration confronts the issue; use the questions below to push students to explore the text further.

Excerpt from Jefferson's First Inaugural Address:

"During the contest of opinion through which we have passed, the animation of discussion and of exertions has sometimes worn an aspect which might impose on strangers unused to think freely and to speak and to write what they think; but this being now decided by the voice of the nation, announced according to the rules of the constitution, all will, of course, arrange themselves under the will of the law, and unite in common efforts for the common good. All, too, will bear in mind this sacred principle, that though the will of the majority is in all cases to prevail, that will, to be rightful, must be reasonable; that the minority possess their equal rights, which equal laws must protect, and to violate which would be oppression. Let us, then, fellow citizens, unite with one heart and one mind. Let us restore to social intercourse that harmony and affection without which liberty and even life itself are but dreary things. And let us reflect that having banished from our land that religious intolerance under which mankind so long bled and suffered, we have yet gained little if we countenance a political intolerance as despotic, as wicked, and capable of as bitter and bloody persecutions. During the throes and convulsions of the ancient world, during the agonizing spasms of infuriated man, seeking through blood and slaughter his long-lost liberty, it was not wonderful that the agitation of the billows should reach even this distant and peaceful shore; that this should be more felt and feared by some and less by others; that this should divide opinions as to measures of safety. But every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all republicans-we are all federalists. If there be any among us who would wish to dissolve this Union or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it."

Ask students to answer the following questions in note form or as an essay, in class or for homework. You may wish to follow-up with a class discussion.

What is Jefferson saying about the political climate of the U.S. in 1800?
Why is he saying this—what has been going on for the past 8 years or so?
Does he make a convincing case—would a Federalist have been convinced of his sincerity and "right" intentions? Why was Marbury upset about not receiving his commission? What was the big deal—how was he "wronged"? If you and your students want to learn more about Marbury, this essay on " Marbury's Travail " explains his background and the meaning of being a justice of the peace in the Early Republic.

Materials & Media

John marshall, marbury v madison and judicial review—how the court became supreme: worksheet 1, marbury -- "trial of a young nation", related on edsitement, the supreme court: the judicial power of the united states, james madison: from father of the constitution to president, the constitutional convention of 1787, twelve angry men: trial by jury as a right and as a political institution.

Constitutional Landmarks pp 1–48 Cite as

The Supreme Court and Judicial Power

Charles M. Lamb 3 &
Jacob R. Neiheisel 4
First Online: 02 December 2020

230 Accesses

The U.S. Constitution, the oldest written constitution, gives each branch of the federal government certain distinct powers, each apportioned through a separated system with built-in checks and balances calculated to guard against abuses perpetrated by any one branch. The nation is therefore said to have three separate governmental branches sharing power. This chapter introduces the Supreme Court and its exercise of power, examining milestone decisions beginning with Marbury v. Madison (1803). It then explains the framework used for exploring the Court’s policy-making across the three major constitutional eras as laid out in Robert McCloskey’s The American Supreme Court .

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Lamb, C.M., Neiheisel, J.R. (2021). The Supreme Court and Judicial Power. In: Constitutional Landmarks. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-55575-7_1

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Home — Essay Samples — Law, Crime & Punishment — Court — The United States Supreme Court

The United States Supreme Court

Categories: Court Justice

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Published: Feb 12, 2019

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October 27, 2021

2020-2021 ACS Supreme Court Review

The fifth edition of the American Constitution Society Supreme Court Review features a series of critical essays, penned by the nation’s top legal scholars and advocates, on the most important cases and themes from the U.S. Supreme Court’s October 2020 Term. Click on the images below to download a full PDF version, or follow the links in the table of contents to read individual articles online.

write an essay on american supreme court and justice review

Table of Contents:

The New Supreme Court—A Brief Inimicus Curiae

Garrett Epps

Brnovich v. Democratic National Committee : Whitewashing the Voting Rights Act

Davin Rosborough

Fourth Amendment Review 2021

Ekow N. Yankah

Ford Motor Co. : The Murky Doctrine of Personal Jurisdiction

Linda Sandstrom Simard, Charles W. “Rocky” Rhodes, Cassandra Burke Robertson

The First Amendment Adrift?

Alan K. Chen

Cedar Point Nursery v. Hassid and Judicial Expansion of the Takings Clause

Brianne J. Gorod, Dayna J. Zolle

Arthrex and Collins : The Roberts Court and Presidential Authority

Alan B. Morrison

Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe : The Twists and Turns of the Alien Tort Statute

Oona A. Hathaway

The Computer Fraud and Abuse Act After Van Buren

Constitutional culture, partisan politics, and the failed campaign to topple the affordable care act.

Nicholas Bagley

The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia

Ira C. Lupu, Robert W. Tuttle

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Background Essay: The Supreme Court and the Bill of Rights

Guiding Question: How has the Supreme Court decided cases in controversies related to the Bill of Rights?

I can identify the role of the Supreme Court in protecting civil liberties.
I can explain how the Supreme Court’s role has changed over time.

Essential Vocabulary

During the last 60 years, the Supreme Court has become perhaps the central defender of civil liberties, or freedoms that government is not allowed to restrict, in the United States. This role has been a relatively recent development that marked a distinct change from the Founding, when the Court mostly addressed government powers. The evolution of this role for the Court has greatly expanded popular expectations of enjoying individual rights. However, it has also been fraught with numerous difficulties, both for the constitutional order and for the Supreme Court itself, as it has become the center of controversy about rights.

Limited Government and the Supreme Court

The original Founding understanding of the Bill of Rights was that it limited the powers of the federal government to violate the rights of the people. When originally ratified, the Bill of Rights only applied to the national government, not to state governments. State governments had their own bills of rights to protect their citizens. This reflected the constitutional principle of federalism, or the separation of powers between state and national governments. The Supreme Court endorsed this Founding view that the Bill of Rights applied only to the national government in the case Barron v. Baltimore (1833).

Moreover, this also represented the principle of limited government, one of the foundations of protecting liberties. The national government had certain enumerated and implied powers that the three branches—legislative, executive, and judicial—exercised in making, executing, and interpreting the law. Enumerated powers are those listed explicitly in the Constitution. Implied powers are those that government has that are not written in the document. The national government could not exceed these powers to violate the liberties of the people. To further this protection, states had their own bills of rights. The Declaration of Independence asserted that the ultimate protection of the people’s liberties is the overthrow of a tyrannical government after a long train of abuses.

The role of the Court was to hear all cases arising under the Constitution. After the case of Marbury v. Madison (1803), the Court’s role expanded to include determining the constitutionality of governmental laws and actions. However, there was debate over whether or not the other branches also had the responsibility of interpreting the Constitution.

It is important to note that although the Court could rule a law or action unconstitutional, it was not necessarily the final word on the Constitution. In a speech critical of the Dred Scott v. Sandford (1857) decision, Abraham Lincoln quoted Andrew Jackson, saying, “The Congress, the executive and the court, must each for itself be guided by its own opinion of the Constitution.” Lincoln was arguing that the Court’s authority and just precedents , or earlier laws or rulings, should be respected, but the Supreme Court was not necessarily the final word on the meaning of the Constitution and could make errors, as it did in Dred Scott . All the branches must interpret the document in the exercise of their constitutional powers for the ends of liberty, equality, and justice.

The Supreme Court, Incorporation, and the Bill of Rights from the Twentieth Century to Today

The due process clause of the 14th Amendment led to the incorporation of the Bill of Rights, which meant that the Supreme Court applied the Bill of Rights to the states. During the first half of the twentieth century, the Court incorporated the Bill of Rights selectively in a few cases. For example, it extended the First Amendment right of free speech against state violation in Gitlow v. New York (1925) and freedom of the press in Near v. Minnesota (1931).

The popular understanding of the Court as the protector of individual rights became widely accepted during the Warren Court (1953–1969) and after. Many of the decisions were controversial because Americans viewed the issues involved differently. Some Americans questioned whether the Court was the appropriate branch to define rights or whether it should be left to the other branches of government or the amendment process. The Court also controversially overturned the laws and common values of states and local communities for one uniform, national standard.

The Court expanded the application of the Bill of Rights (incorporated) to the states in several areas and protected civil liberties in new ways. For example, the Court banned school-sponsored prayer and Bible reading in public schools in Engel v. Vitale (1962) and Abington School District v. Schempp (1963), respectively, for violating the establishment clause of the First Amendment.

The Court protected the rights of students in local public schools in other ways. In Tinker v. Des Moines (1969), the Court decided that students had the right of free speech to protest the Vietnam War under the First Amendment. The students had worn black armbands to protest the war despite a warning not to, and the school suspended them.

The Court protected the rights of the accused in major cases during the mid-1960s. The Court stated that criminal defendants are entitled to an attorney in Gideon v. Wainwright (1963). The Court excluded, or left out, illegally seized criminal evidence under the Fourth Amendment in Mapp v. Ohio (1964). In Miranda v. Arizona (1966), the Court decided that police officers must provide a “Miranda warning” informing accused people of their rights before questioning them about a crime.

The Court also made key decisions on moral issues that were fiercely debated in American society. In Griswold v. Connecticut (1965), the Court asserted that a “right to privacy” exists and is implicit in several amendments of the Bill of Rights. Therefore, the Court declared a state law banning birth control unconstitutional. The decision was a precedent for the use of the right to privacy argument in Roe v. Wade (1973), which established a right to abortion.

In recent decades, the Court helped protect gay rights. In Lawrence v. Texas (2003), the Court invalidated state laws banning homosexual acts. In Obergefell v. Hodges (2015), the Court made gay marriage a right when it required states to recognize the same-sex marriages of other states.

The Supreme Court has left a mixed record regarding its decisions related to the Bill of Rights. On one hand, Court rulings have protected what seem like reasonable and fundamental individual liberties. On the other hand, the Court has made rulings on cultural, social, and moral disputes that often did little to resolve the wider debate over the issues and maybe even fueled division among Americans. In recent decades, for better or worse, Americans have increasingly looked to the Supreme Court as the protector of civil liberties and the final word on the Constitution.

Background Essay Questions: The Supreme Court and the Bill of Rights

Supreme Court Case Scenarios: How Would You Decide?

The Supreme Court and the Bill of Rights

How has the Supreme Court decided cases in controversies related to the Bill of Rights?

ESSAY SAUCE

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Essay: Judicial process and review in American Courts

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As Judicial Process in America discusses, judicial review is one of the features that sets American courts apart from those in other countries. Judicial scholar Herbert Jacob says “the United States is the outlier in the extraordinary power that its ordinary courts exercise in reviewing the conditionality of legislation” (Carp, 2017). As we discussed in class, Article III of the constitution does not specifically state that the Court has the power of judicial review. It states that, “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 citizen of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizen or subjects.” In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make. The trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the state where the said crimes shall have been committed; but when not committed within any state, the trial shall be at such place or places as the Congress may by law have directed. Therefore, it does not state whether or not the Supreme Court has the power of judicial review of the other branches rather it may assume that it does. PBS Digital Studios states, that “judicial review gives the power to the court to declare laws unconstitutional and review the legislative and executive branches. They can have judicial review on congressional laws by validating the law in question, state actions, federal bureaucratic agencies, and presidential actions” (Benzine, 2015).

As we discussed in class, the “Judiciary Act of 1801” also known as the “Midnight Judges Act” reduced the number of justices on the Supreme Court to five. This abolished the practice of “riding the circuit” and created six federal circuit courts. Sixteen new judgeships were created for these circuit courts. Jeffersonians claimed it was a power grab by the defeated Federalists who “retreated to the benches.” The “Judiciary Act of 1789” allowed the Supreme Court to issue “writs of mandamus” which is an order to perform a duty. According to Judicial Process in America, “Marbury v. Madison (1803) is important to help understand the concept of judicial review because “As Secretary of state, Marshall had the job of delivering the commissions of the newly appointed judges. Time ran out before the new administration took over, however, and seventeen of the commissions were not delivered before Jefferson’s inauguration. Jefferson in turn ordered his secretary of state, James Madison, to abstain from delivering the remaining commissions. William Marbury decided to ask the Supreme Court to force Madison to deliver their commissions. They relied on Section 13 of the Judiciary Act of 1789, which granted the Supreme Court the authority to issue ‘writs of mandamus’- court orders commanding a public official to perform and official, nondiscretionary duty. Marshall declared Section 13 of the Judiciary Act of 1789 unconstitutional because it granted original jurisdiction to the Supreme Court in excess of that specified in Article III of the Constitution. Thus the Court’s power to review and determine the constitutionality of acts of Congress was established. This decision is rightly seen as one of the single most important decisions the Supreme Court has ever handled down. A few years later the Court also claimed the right of judicial review of actions of state legislatures” (Carp, 2017).

According to Judicial Process in America, “Plessy v. Ferguson (1896) upheld the Louisiana statue thus the court established the separate but equal policy that was to been effect for about sixty years. During this period many states required that the races sit in different areas of buses, trains, terminals, and theaters; use different restrooms; and drink from different water fountains and attend different schools. Blacks were sometimes excluded from restaurants and public libraries. This body of laws and extralegal practices was unofficially referred to as Jim Crow, after the title of an anonymous nineteenth-century song. Parents of black schoolchildren claimed that state laws requiring segregation deprived them of ‘equal protection’ of the laws under the Fourteenth Amendment. The Supreme Court ruled that the schools are ‘inherently unequal’ and, therefore, segregation denies equal protection. The court overturned the ‘separate- but- equal’ doctrine and established the desegregation of public schools” (Carp, 2017). According to PBS Digital Studios, the judicial review lead to review against state actions of Plessy v. Ferguson (1896), which lead to Brown v. Board of Education (1954)” (Benzine, 2015).

According to legal dictionary, is United States v. Nixon or “Watergate” (1974) was another important case of judicial review because, “During the 1972 election campaign between Republican President Richard Nixon and Democratic Senator George McGovern, the Democratic headquarters in the Watergate building was burglarized. Special federal prosecutor Archibald Cox was assigned to investigate the matter, but Nixon had him fired before he could complete the investigation. The new prosecutor obtained a subpoena ordering Nixon to release certain documents and tape recordings that almost certainly contained evidence against the President. Nixon, asserting an ‘absolute executive privilege’ regarding any communications between high government officials and those who assist and advise them, produced heavily edited transcripts of 43 taped conversations, asking in the same instant that the subpoena be quashed and the transcripts disregarded. The Supreme Court first ruled that the prosecutor had submitted sufficient evidence to obtain the subpoena, and then specifically addressed the issue of executive privilege. Nixon’s declaration of an “absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances,” was flatly rejected. In the midst of this ‘Watergate scandal,’ Nixon resigned from office just 15 days later, on August 9, 1974” (Legal Dictionary). According to PBS Digital Studios, this was an example of the court using judicial review on presidential actions (Benzine, 2015).

Lastly, according to PBS, “The events leading up to the infamous 1857 Supreme Court case Dred Scott v. Sandford (1857) were decades in the making. In 1834, Dred Scott, a slave of Dr. John Emerson, a surgeon in the U.S. Army, left the slave state of Missouri to accompany his master to the free state of Illinois and then to the free Wisconsin Territory. In 1846, years after his eventual return to Missouri and months after the subsequent death of his owner, Scott sued Emerson’s for his and his family’s freedom, on the basis of the time they had spent in the free state and territory. Established legal precedent in Missouri, in fact, upheld the ‘once free, always free’ principle, and Scott’s suit should have been a relatively routine process. However, a legal technicality complicated the case and delayed its outcome for years, during which time the political tensions around the issue of slavery continued to heighten. After Scott finally won his freedom in a lower Missouri court, J.F.A. Sanford, Mrs. Emerson’s brother and the legal administrator of her property, appealed to the Missouri Supreme Court, reversing the precedent and deciding against Scott. In 1856, the case reached the U.S. Supreme Court. Although Scott’s case was fraught with legal complications, the basic issue before the Court was whether Scott remained a slave after spending time in a free state and a free territory, each of the nine justices wrote a slightly different opinion in the case. Ultimately they voted 7-2 against Scott. In March 1857, Chief Justice Roger Taney delivered the majority opinion. Drawing a distinction between state and federal citizenship, Taney held that although some states extended citizenship to blacks. Under the terms of the U.S. Constitution, blacks were not — and never could be — citizens of the United States. Taney wrote that at the time of the Constitution’s ratification blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights that the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his own benefit.” Taney went on to say that because Scott was not a U.S. citizen, he had no standing to sue in federal court. Taney’s holding on standing should have decided the case, but he continued in an effort to settle the brewing sectional battle over slavery. He further held that, because the abolition of slavery in the territories were beyond the constitutional power of Congress and slave owners deprived of their property without due process of law, the Missouri Compromise of 1820 had been unconstitutional. The decision marked only the second time in its history — and the first since the 1803 case Marbury v. Madison — that the Court had invoked its power of judicial review to overturn federal legislation” (Konkolly, 1857).

Judicial review has developed in the American Judicial System as cases have occurred shaping judicial review as the most important power of the Supreme Court by letting them declare laws unconstitutional and reviewing the legislative and executive branches. The cases discussed are important and play a major role in helping Americans understand the concept of judicial review by “validating” the law in question in congressional laws, state actions, and presidential actions as shown through the cases provided.

2. Judicial Process in America discusses some of the barriers to the judicial system used to prevent lawsuits or to reduce the workload of the judiciary. These barriers include legislative politics leaving jurisdiction at the will of state legislatures, not to “adjudicate” questions unless it is a real case or controversy, ruling on matters of law and not political questions, and having standing to sue as one shouldn’t benefit from a “governmental endeavor” and then sue in court. Each of these barriers has an impact on advancing or inhibiting the pursuit of justice and is shown throughout the cases mentioned.

As we discussed in class, one of the barriers discussed is “legislative politics” which can inhibit the pursuit of justice because the court does not always find justice based on what congress passes because it can affect the courts jurisdiction to hear the case and Congress may deny appellate jurisdiction according to the Exceptions Clause. As discussed in Judicial Process in America, “Some judges and judicial scholars argue that the U.S. Constitution and the respective state documents confer a certain inherent jurisdiction on the judiciaries in some key areas, independent of the legislative will. Nevertheless, the jurisdictional boundaries of American courts clearly are a product of legislative judgments determinations often flavored with the bittersweet spice of politics. The U.S. Supreme Court is sensitive to the moods of Congress as a study showed the court has been shown to show ‘self- restraint’ and hasn’t used judicial review in order to ‘invalidate’ acts of Congress. The most prominent example of congressional power over court jurisdiction is in 1867. When Congress ‘empowered’ the courts to grant ‘habeas corpus’ to those imprisoned and have a violation to their rights under the constitution. William McCardle was imprisoned for being in violation of ‘Reconstruction laws.’ After appealing to the Supreme Court and the arguments were made, Congress became involved in fear that the court would use the Ex Parte McCardle case to ‘strike down’ the Reconstruction act. Therefore, while the Court was deciding, Congress removed the subject from the ‘federal docket’ and stated that McCardle’s appeal must be dismissed for want of jurisdiction” (Carp, 2017). According to Judicial Process in America, “United States v. Windsor (2013) is a result of the Hawaii Supreme Court approving same sex marriages in 1993, Congress was determined to discourage judges in other states from making similar decisions. The result was the Defense of Marriage Act in 1966. The law was designed in part to prevent judges both state and federal from reading any meaning into the Fourteenth Amendment of the U.S. Constitution that would condone same – sex marriages. In United States v. Windsor (2013) the Supreme Court overturned the Defense of Marriage Act Justice Kennedy said the act was unconstitutional under the Due Process clause of the Fifth Amendment. Kennedy stated, the federal statute is invalid, for no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity. In Obergefell v. Hodges (2015) the Supreme Court ruled that same sex couples had a constitutional right to marry, thus turning aside contrary court rulings and legislative decisions in the twelve states did not support permit same sex couples to marry” (Carp, 2017).

Another barrier is that a case must have definite controversy; it advances the pursuit of justice because it has to be heavily controversial with the public, that the majority wants the case to be resolved in court. As Judicial Process in America states, “There must be a controversy between legitimate adversaries who have met all the technical legal standards to institute a suit. The suit must concern the protection of a meaningful non-trivial right or the prevention or redress of a wrong that directly affects the parties to the suit. Federal courts do not render advisory opinions that are situations that are hypothetical, the general principle is that the parties to the suit must have proper standing, and lastly the court will not hear a case that has become a moot when the basic facts or the status of the parties has significantly changed in the interim between when the suit was filed and when it comes before the judges. DeFunis v. Odegaard or the ‘law affirmative action case’ that is a moot example in 1974 when the Supreme Court agreed to hear a petition from Marco DeFunis who challenged the constitutionality of the admissions policy of University of Washington Law School. The law school gave preferential treatment to certain minority racial groups, even though such applicants did not rate as high as other, nonminority applicants according to the school’s evaluation procedures based on objective tests and grades. DeFunis, a nonminority applicant, charged with discrimination in violation of his Fourteenth Amendment rights. During the initial trail of this case at the state court level, DeFunis had been admitted to the law school on a sort of conditional basis and when the case eventually reached the Supreme Court, he was in his final quarter of law school. When the Supreme Court learned of this development, a majority determined that the case had become moot” (Carp, 2017).

Lastly according to Judicial Process in America, “courts do not decide political questions, because the court can’t be an instrument in manifesting the popular will, and is therefore not political. By not deciding political question it inhibits justice sometimes because “a political question is one that ought properly to be resolved by one of the other two branches of government even though it may appear before the court wrapped in judicial clothing. A case example of this would be Baker v. Carr (1962) Oyez states; “Charles W. Baker and other Tennessee citizens alleged that a 1901 law designed to apportion the seats for the state’s General Assembly was virtually ignored. Baker’s suit detailed how Tennessee’s reapportionment efforts ignored significant economic growth and population shifts within the state. Which raised the question, did the Supreme Court have jurisdiction over questions of legislative apportionment? In an opinion which explored the nature of ‘political questions’ and the appropriateness of Court action in them, the Court held that there were no such questions to be answered in this case and that legislative apportionment was a justiciable issue. In his opinion, Justice Brennan provided past examples in which the Court had intervened to correct constitutional violations in matters pertaining to state administration and the officers through whom state affairs are conducted. Brennan concluded that the Fourteenth Amendment equal protection issues which Baker and others raised in this case merited judicial evaluation” (Oyez, 2016). Another case example of political question is the case, Zivotofsky v. Kerry (2015) According to Congressional Research Services, “The Supreme Court in its last term by a vote of 6-3 invalidated a statute passed by Congress touching on the status of Jerusalem, affirming the U.S. Court of Appeals for the D.C. Circuit decision in Zivotofsky v. Secretary of State that the President’s power to recognize foreign sovereigns is exclusive and trumps Congress’s authority to regulate passports. The Court’s decision in Zivotofsky v. Kerry (2015) represents the first time the Court has struck down a congressionally enacted law on the basis of a separation-of-powers infringement involving a matter of foreign affairs. At the same time, the Court rejected the executive branch assertion that it has exclusive authority to conduct international diplomacy, while endorsing Congress’s ample authority to influence the nation’s foreign affairs. The implications the decision will have on Congress’s foreign affairs authority will likely depend on its interpretation by lower courts, as well as the two political branches. Successive U.S. Administrations have maintained that the status of Jerusalem is a matter to be resolved between Israel and the Palestinians. Congress has consistently urged the President to recognize Jerusalem as the capital of Israel. In 2002 Congress passed a measure that directed the State Department to give U.S. citizens born in Jerusalem the option of having Israel recorded as their place of birth on their passports in such cases, omitting any reference to country. On signing the act into law, President George W. Bush wrote in an accompanying signing statement that this and other provisions on Jerusalem would, “If construed as mandatory … impermissibly interfere with the President’s constitutional authority to conduct the nation’s foreign affairs.” When Menachem Zivotofsky’s parents sought to invoke the measure to have their son’s birthplace recorded as “Jerusalem, Israel,” the State Department refused. The Zivotofskys took their request to court, seeking an order to have the passport reissued with the place of birth listed as Israel in conformance with the statute. The case was first rejected on the basis of standing, then on the basis of the political question doctrine, but the Supreme Court reinstated the case in 2012, finding there to be no political question and directing the appellate court to examine the “textual, structural, and historic evidence” to determine the nature of the President’s recognition power and Congress’s passport power” (Elsea, 2015).

Lastly, the barrier of “standing to sue” as we learned in class, the court usually requires party to have a personal interest in protection of a legal right conveyed by a statute or law which would help advance the pursuit of justice to prevent a frivolous lawsuit. Court usually standing to groups claiming infringement, states may permit taxpayer suits where standing is granted to all member of the group. An example of a case is Frothingham v. Mellon (1923) that denied federal courts the authority to hear cases challenging the expenditure of tax dollars. It was modified in 1968 when Court allowed challenges to federal funding of private religious schools.

Chapter four of Judicial Process in America, discusses some of the barriers the judicial system contains to either prevent frivolous lawsuits or for the purpose of decreasing the workload of the judiciary. These “principles” are derives from legal tradition and constitutional and statutory law, that govern a judge’s decision about whether to review a case. As discussed, these barriers include legislative politics leaving jurisdiction at the will of state legislatures, not to “adjudicate” questions unless it is a real case or controversy, ruling on matters of law and not political questions, and having standing to sue as one shouldn’t benefit from a “governmental endeavor” and then sue in court. Each of these barriers has an impact on advancing or inhibiting the pursuit of justice because many judges believe that the overuse of their power actually weakens it, and is shown throughout the cases mentioned.

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Supreme Betrayal

A requiem for Section 3 of the Fourteenth Amendment

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The Supreme Court of the United States did a grave disservice to both the Constitution and the nation in Trump v. Anderson .

In a stunning disfigurement of the Fourteenth Amendment, the Court impressed upon it an ahistorical misinterpretation that defies both its plain text and its original meaning. Despite disagreement within the Court that led to a 5–4 split among the justices over momentous but tangential issues that it had no need to reach in order to resolve the controversy before it, the Court was disappointingly unanimous in permitting oath-breaking insurrectionists, including former President Donald Trump, to return to power. In doing so, all nine justices denied “We the People” the very power that those who wrote and ratified the Fourteenth Amendment presciently secured to us to save the republic from future insurrectionists—reflecting a lesson hard-learned from the devastation wrought by the Civil War.

Quinta Jurecic: The Supreme Court is not up to the challenge

For a century and a half before the Court’s decision, Section 3 of the Fourteenth Amendment was the Constitution’s safety net for America’s democracy, promising to automatically disqualify from public office all oath-breaking insurrectionists against the Constitution, deeming them too dangerous to entrust with power unless supermajorities of both houses of Congress formally remove their disability. This provision has been mistakenly described by some as “undemocratic” because it limits who may be elected to particular positions of power. But disqualification is not what is antidemocratic; rather, it is the insurrection that is antidemocratic, as the Constitution emphatically tells us.

In any event, all qualifications for office set by the Constitution limit who may be elected to particular positions of power. And no other of these disqualifications requires congressional legislation to become operative, as the Court now insists this one does. To be sure, the other qualifications—age, residence, natural-born citizenship—appear outside the Fourteenth Amendment, whose fifth section specifically makes congressional action to enforce its provisions available. But no such action is needed to enforce the rights secured to individuals by Section 1 of the same amendment, so deeming congressional action necessary to enforce Section 3 creates a constitutional anomaly in this case that the majority could not and did not explain. For that matter, no other provision of the other two Reconstruction amendments requires congressional enforcement either. As the concurring justices explained, the majority “simply [created] a special rule for the insurrection disability in Section 3.”

That the disqualification clause has not previously been invoked to keep traitors against the Constitution from having a second opportunity to fracture the framework of our republic reflects not its declining relevance but its success at deterring the most dangerous assaults on our government until now. Put simply, far from what some irresponsibly dismiss as an “obscure, almost discarded provision” of our legal and political system, this section of our Constitution has long been among its mightiest pillars, one that the Supreme Court itself has now all but destroyed.

What ought to have been, as a matter of the Constitution’s design and purpose, the climax of the struggle for the survival of America’s democracy and the rule of law instead turned out to be its nadir, delivered by a Court unwilling to perform its duty to interpret the Constitution as written. Desperate to assuage the growing sense that it is but a political instrument, the Court instead cemented that image into history. It did so at what could be the most perilous constitutional and political moment in our country’s history, when the nation and the Constitution needed the Court most—to adjudicate not the politics of law, but the law of the politics that is poisoning the lifeblood of America.

The issues before the Court were not difficult ones under the Constitution. As Chief Justice John Marshall once wrote of a considerably more challenging question, that of the Court’s own role in reviewing the constitutionality of government decisions, this was indeed “a question deeply interesting to the United States; but, happily, not of an intricacy proportional to its interest.” As the extraordinary array of amicus briefs filed in Trump v. Anderson made clear, the voluminous historical scholarship exploring the origins of the disqualification clause and its intended operation left no genuine doubt that the Colorado Supreme Court got it exactly right in its decision explaining why the former president was ineligible to “hold any office, civil or military, under the United States,” certainly including the presidency.

Perhaps some of the justices were untroubled by the consequences of disregarding both that scholarship and the plain language of the disqualification clause. Joining fully in the Court’s anonymous per curiam opinion that states cannot enforce the clause against federal (as opposed to state) officeholders and candidates would presumably have caused those justices no personal discomfort—apart, perhaps, from that of being seen as trying to square the ruling with their ostensible fidelity to textualism and their supposed belief in the binding force of original meaning.

Adam Serwer: The Supreme Court reveals once again the fraud of originalism

For Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson—who wrote a separate concurrence that in parts read more like a dissent—we can only surmise that any discomfort they felt was outweighed by the extra-constitutional allure of going along with the other justices on the decision’s bottom line and thus enabling the nation’s electorate to work its will, rather than the Constitution’s. Those three justices took the opportunity to distance themselves from at least part of what the Court’s majority did by criticizing its “attempts to insulate all alleged insurrectionists from future challenges to their holding federal office.” Sotomayor, Kagan, and Jackson convincingly dispatched as “inadequately supported as they are gratuitous” the majority’s unnecessary holdings that only Congress can enforce the disqualification clause and that Congress’s implementing legislation must satisfy the majority’s made-up insistence upon “congruence and proportionality.” Those three justices left in tatters much that all the other justices, with the exception of Amy Coney Barrett, wrote about the operation of the disqualification clause against federal officeholders, making plain that the majority’s “musings” simply cannot be reconciled with the Fourteenth Amendment’s language, structure, and history.

For her part, Justice Barrett lectured the country about the “message Americans should take home” from the decision, criticizing the majority for needlessly addressing “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced,” while simultaneously criticizing her three separately concurring colleagues for supposedly amplifying “disagreement with stridency,” despite the absence of a single strident word in their clarion warning.

What, then, accounted for the unanimous outcome in this case? All nine justices were persuaded by the appeal of a fatuous argument featured prominently in the briefs supporting the former president—the argument that no single state should be able to disqualify a candidate for the presidency.

But that argument, despite its prominence in many public discussions of this decision, was always utterly empty of constitutional substance. Anyone who knows anything about the United States Constitution and the way the judicial system operates—and that surely includes all nine Supreme Court justices—has to know that a single state could never have rendered a disqualification ruling that would bind the other 49 states, an admittedly untenable result. Here’s how Jason Murray, a counsel for the challengers, put the constitutional answer to that argument when he was pressed on this very question by Justice Kagan:

Ultimately, it’s this Court that’s going to decide that question of federal constitutional eligibility and settle the issue for the nation. And, certainly, it’s not unusual that questions of national importance come up through different states.

Although no justice mentioned this response, nobody should doubt that a state court’s determination of a federal constitutional question—such as Colorado’s that the former president had “engaged in an insurrection or rebellion” against the U.S. Constitution—is subject to review by the Supreme Court. If the Court upholds the state’s disqualification decision, then it will be binding nationwide, in the manner and to the extent decided by the Court. If the state’s disqualification is held to be invalid, then it will be invalid in that state, as well as nationwide. It’s as simple as that.

Nothing about letting an individual state initiate the disqualification process ever threatened to create what the unanimous Court called a “patchwork” of divergent state resolutions of the controlling federal questions of what constitutes a disqualifying “insurrection” and whether the former president had “engaged” in one. From the outset, the hand-wringing about how no state should be empowered to rule over its sister states on the national question as to who might run for president was all smoke and mirrors, manifestly predicated on a demonstrably false premise about the way our judicial system works.

So it’s little surprise that, built on that false premise, the opinion that emerged from the Court’s constitutional confusion was a muddled, nameless per curiam decree palpably contrary to the text, history, and purpose of the Fourteenth Amendment.

For no apparent reason other than to create the impression that it was leaving open the possibility that the former president might yet be disqualified pursuant to congressional legislation, the per curiam opinion went out of its way to mention that Congress, in legislation whose enactment predated Section 3, had indeed “effectively provided an additional procedure for enforcing disqualification” by making “engaging in insurrection or rebellion … a federal crime punishable by disqualification from holding office under the United States”; the opinion also noted that a “successor” to that legislation “remains on the books today.”

Many will no doubt catch the transparent implication that, if the former president or other future insurrectionists permanently escape disqualification, that result will be attributable to whoever controls the Justice Department at any given time, not to any action by the Court. But that intended implication overlooks the point that, were that statute all that mattered, a simple majority of Congress could remove the disqualification penalty from that criminal statute, leaving Section 3 unenforceable again. It also conveniently ignores the fact—not denied even by this majority—that Section 3 was specifically intended and written to make criminal conviction unnecessary for disqualifying an insurrectionist from seeking or holding office in the future.

There is, of course, no possibility whatsoever that the statute, 18 U.S. Code § 2383, will play any role in the former president’s eligibility in this election cycle. And the difficulty of enacting legislation of the sort the majority declared essential makes it exceedingly unlikely that anyone who engages in an insurrection against the U.S. Constitution after taking an oath as an officer to support it will ever be disqualified under the Fourteenth Amendment. Thus, as concurring Justices Sotomayor, Kagan, and Jackson damningly noted, the majority’s gratuitous resolution of “novel constitutional questions” about how Section 3 could be enforced in the future was plainly intended “to insulate this Court and [Trump] from future controversy” while insulating “all alleged insurrectionists from future challenges to their holding federal office.”

George T. Conway III: The Court’s Colorado decision wasn’t about the law

The five-justice majority came to its constitutionally unsupported view that states can disqualify insurrectionists from state, but not federal, office by pronouncing incongruous a conclusion that would find—nestled within a constitutional amendment that generally expanded “‘federal power at the expense of state autonomy’”—anything that would “give States new powers to determine who may hold the Presidency” or indeed any other federal office.

But, as many amicus briefs conclusively demonstrated, the Court’s description of how the Fourteenth Amendment altered the intricate relationship of state and federal powers was an absurdly oversimplified and ahistorical caricature. Among the Court’s most basic errors was that it described this state action to enforce Section 3 as a “new power” requiring an affirmative “delegation”—an explicit assignment of authority—elsewhere in the Constitution. If the Court had to identify such a delegation, which it did not, it need have looked no further than the elections and electors clauses of Articles I and II, respectively, which indisputably assign the determination of presidential qualification and disqualification to the states, at least in the first instance. Instead, the Court dismissed that constitutional assignment out of hand by asserting, with no explanation, that “there is little reason to think that these Clauses implicitly authorize the States to enforce Section 3 against federal officeholders and candidates.” Of course, no explanation could have sufficed, which is why none was offered. Under the Constitution, there is every reason to believe that these clauses in fact do authorize the states to enforce Section 3 against federal officeholders and candidates.

In the end, without even trying to address the compelling analysis of the three-justice concurrence, the majority violated the precept rightly insisted on by Chief Justice John Roberts in objecting to how far the Court had gone in Dobbs v. Jackson Women’s Health Organization two years earlier, which stated that, when “it is not necessary to decide more to dispose of a case, then it is necessary not to decide more.” The three justices—objecting that the Court had departed from that “vital principle” by “deciding not just this case, but challenges that might arise in the future”—quoted Justice Stephen Breyer’s dissent in Bush v. Gore : “What it does today, the Court should have left undone.” “In a sensitive case crying out for judicial restraint,” the concurring justices wrote , the majority simply “abandoned” all restraint.

But whatever praise the three justices deserve for distancing themselves from the majority’s extraordinary overreach, they cannot be excused for joining the majority in holding—wrongly, in light of the Supreme Court’s obvious power and responsibility to ensure uniformity—that the Court’s decision to disempower Colorado from playing its part in the ultimate determination was somehow necessary to prevent the emergence of “a chaotic state-by-state patchwork, at odds with our Nation’s federalism principles.” By insisting that states have no role to play in initiating the disqualification of insurrectionists from federal office even with the Supreme Court sitting to review what each state does so as to ensure nationwide consistency, all nine justices stood federalism on its head.

Whether born of a steeled determination not to disqualify the presumptive Republican nominee from the presidency, or of a debilitating fear of even deciding whether the Constitution disqualifies the presumptive Republican nominee precisely because he is the presumptive Republican nominee, this step that all nine justices took represents a constitutionally unforgivable departure from the fundamental truth of our republic that “no man is above the law.”

Nor can their action be explained, much less justified, by the converse truth that neither is any man beneath the law. If the process Colorado had followed to determine Trump’s disqualification could have been deemed constitutionally inadequate as a foundation for the Supreme Court to have affirmed the ruling of the state’s highest court and applied it to him nationwide, this would be a different case altogether. But nothing any of the justices said even hinted at such inadequacy. On the contrary, the week-long trial by the Colorado state court, which had indisputable jurisdiction to consider the matter, undoubtedly more than satisfied the constitutional requirements for disqualifying the former president under Section 3. At that trial, he was afforded every opportunity to defend himself against the charge that he had personally “engaged” in an “insurrection or rebellion” against the Constitution. Not a single justice suggested that the process was less than what the former president was due. That trial ended in a finding by “clear and convincing evidence” that he had not only engaged in that insurrection but had orchestrated the entire months-long effort to obstruct the joint session’s official proceeding, preventing the peaceful transfer of power for the first time in American history. Not a single justice suggested that a more stringent standard of proof was required or that the courts below applied an insufficiently rigorous definition of insurrection . No justice suggested that the First Amendment or anything else in the Constitution shielded the former president from the reach of Section 3.

Mark A. Graber: Of course presidents are officers of the United States

Nor did any justice offer any other reason to doubt the correctness of the conclusion by both courts below that the former president’s conduct was indeed the paradigm of an insurrection or a rebellion against the Constitution, disqualifying him from the presidency ever again. Nor, finally, is it easy to imagine a more thoroughgoing misinterpretation of the Fourteenth Amendment and scrambling of the division of responsibilities that the amendment carefully assigns. In supposedly following the blueprint of the amendment, which specifically provides a method for oath-breaking insurrectionists to be exempted from Section 3’s disqualification by joint action on the part of two-thirds of both houses of Congress, the Court’s majority decreed that mere inaction by Congress would suffice to lift that disqualification. Thus, by effectively flipping on its head the congressional power to remove disqualification, the Court seized for itself the role that the Fourteenth Amendment expressly and deliberately left to Congress—that of deciding whether a particular oath-breaking insurrectionist poses too little danger to the republic to be permanently barred from holding or seeking public office.

Far from preventing what it sought to depict as state usurpation of a federal responsibility, the Supreme Court itself usurped a congressional responsibility, and it did so in the name of protecting a congressional prerogative, that of enacting enforcement legislation under Section 5 of the Fourteenth Amendment.

Our highest court dramatically and dangerously betrayed its obligation to enforce what once was the Constitution’s safety net for America’s democracy. The Supreme Court has now rendered that safety net a dead letter, effectively rescinding it as if it had never been enacted.

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The Supreme Court is the highest federal court that is entitled to giving judicial Powers to the nation especially in the United States. It was established through the Judiciary Act of 1789 and formally received recognition in 1790. The Supreme Court receives recognition in Article III of the Constitution. This essential aspect of the judicial system ensures that various functions are fulfilled accordingly. These functions include: put in place proper procedures and rules for the federal courts and acting as the interpreter of the states and federal law. The Supreme Court comprises of a chief justice and other eight associate justices. These justices are appointed by the President in accordance to the Article III (Kian, 204). After they have been appointed they remain in office and the only way they can be removed is through impeachment by the congress. Over the years there have been many reforms where presidents attempt to increase or decrease the number of justices in order to favor their political endeavors but they have all been limited (Kian, 204). The Supreme Court practices jurisdiction by hearing particular appeals from lower federal courts and state courts. It also issues various kinds of orders and writs that ensure its enforcement of their decisions. The Supreme Court has received much of its jurisdiction through Article III that allows it gives rulings on all the cases that affect Ambassadors, public Ministers and Consuls as well as the ones in which a state shall be party (Kian, 204). The Supreme Court gives the final decisions which cannot be appealed. Their decision may be changed through interpreting the Constitution and amending it. The Supreme Court has for many years given its mandate over the states by defining the rules and procedures to be followed by the Court and lower federal courts. Similarly it promulgates the rules that govern civil and criminal cases in the district courts (Kian, 204). There have been many deliberations over the jurisdiction of the Supreme Court and many have tried to determine their roles. This paper will focus on discussing the roles of the Supreme Court and determine how they have changed over time. This will be coupled with the procedures of the court in terms of how they carry out their procedures (Sill, 59). Additionally, it will determine how the Supreme Court has been mandated to play the role of the policy maker. It will be followed by a determination of how the Supreme Court is on the verge of delivering more power to corporations. Similarly, paper will determine the ideal role of the Supreme Court (Sill, 59). In order to determine how the role of the Supreme Court has changed over time, it is important to consider evaluating how it affects ones personal life. This requires the understanding of the court’s procedures and the way it carries out its’ jurisdiction. To start with, the Supreme Court begins its term on the first Monday in October (Sill, 59). The term is divided into various sittings where the justices oversee the cases brought forward and give their opinions. The next step requires their intervention in recess cases where the deliberate on the issues brought forth and write opinions. These sittings and recesses alternate at intervals of two weeks (Sill, 59). The justices are however given some form of private life where they spend most of their time in the courts. Their power is reflected through decision making processes which shape the policies of the real world and politics in government. They give their insight on the laws passed by Congress and the actions taken by the President (Sill, 59). The Supreme Court has the powers to initiate their power of choice. Despite the many petitions they receive each year, they have the mandate to rule over the cases they choose to hear. Most of the cases they choose are deliberated upon by writ of certiorari which describes an order to send up a case record from a lower court (Sill, 59). Their choose for hearing a case depends on the recommendations made by one of the judges. It occurs through the votes where if four justices vote to hear any case, it is taken up by the other nine (Sill, 59). Their choice on hearing a case depends on the implications that go beyond the parties involved. It also depends on the fact that two lower courts have reached conflicting decisions by considering the decisions in terms of how they may contradict the decisions of the Supreme Court (Sill, 59). The Supreme Court carries critical roles where they hear and decide cases after justices have been briefed or given summaries of the arguments from the lawyers in the lower courts (Sill, 59). This occurs after they have received amici curiae which describe the briefs that have been gathered and prepared by the interest groups or government agencies that support each side of the case. The proceedings of the court are determined after the public hearing where the justices then meet in private to further analyze the case. This enables them to share ideas and make appropriate conclusions (Sill, 59). The justices take sides and the side that wins gives the decision of the court. The next procedure involves making the announcements and implementation of the decision. After voting the court announces their decision where the justices’ opinions are revealed (Sill, 59). This comes with the explanations made for each side. If the vote gives a 9-0 decision then it means that all the justices were in agreement. However, there are times when the decisions split the justices. The justices may at times agree with the decision made by the majority but reach a similar decision for different reasons that offer concurring opinion (Sill, 59). The Supreme Court has limited powers to implement its decisions. This part of their ruling depends on the executive and the legislative arms of government to support them in the decisions they make. However, regardless of these limitations in their implementation processes the Supreme Court ensures policies that impact social change. This is one of the crucial roles they play in the political system. The role of the Supreme Court emanates from the authority it stands in the validation of the legislative and executive actions which it considers as judgments. This gives the court the mandate to ensure individual rights and maintain the constitution in order to apply the provisions that are used in complicated situations. Many of the political leaders have used the Supreme Court to change its vital role in regard to the constitution. In the past the Supreme Court adopted the constitution where state courts had changed the acts of the actions of the legislative which brought about conflicts with the constitution. For instance, Alexander Hamilton and James Madison had initiated the judicial review in Federalist Papers which prompted them to adopt the constitution. The role of the Supreme Court was argued by Hamilton who claimed that the practice of the judicial review that ensured the will of the entire people would be supreme over the will of the legislative arm in that its statutes might only express the will of the some of the people (Brudney, 1236). On the other hand, Madison claimed that the interpretation of the constitution should only involve reasoned judgment which was upheld by independent judges (Brudney, 1236). This would be in contrary to the conflict and uproar of the processes involved in political affairs. He argued that if any issues regarding the constitution were to be deliberated and decided through bargaining of public politics, then the constitution would result to conflicts due to competing factions and partisan spirit (Brudney, 1236). The change of the roles in the Supreme Court started way back when justices invoked their decisions in implementing the constitution and changing the role of the legislation. For instance, Chief Justice John Marshall in a case against Madison declared that the responsibility carried out by the Supreme Court to change the unconstitutional legislation brought a crucial impact in its obligation to endorse the Constitution (Brudney, 1236). It was the role of the judicial department to give the direction in which the law would follow. The constitution played a significant role through its interpretation and application as it gave room for future changes (Brudney, 1236). This mandated it to allow any changes that could be interpreted in the future. The roles of the Supreme Court gave it a nature that required the major attributes to be marked, and the essential objects were to be delegated in accordance to the minor aspects. Similarly, these objects were to be presumed in accordance to the main aspects. The aspect upheld by the Supreme Court in giving the final decision was challenged by Chief Justice Marshall who indicated that there was a huge task involved in the maintenance of free government. This meant that people should consider the constitution as the guiding principle that was in place to give direction among the people for ages (Brudney, 1236). However, the constitution was open for changes that required adoption of the issues that affected humans. The Supreme Courts ensures this policy by maintaining its powers which include: the interpretation of the Constitution, reviewing the judicial roles, giving interpretation of the laws, ensuring that integrity and faithfulness is applied and dealing with any cases that involved the Constitution (Brudney, 1236). This included the treaties made by federal laws as well as any disputes that emerged within the state. It also ensures that appropriate measures and laws are applied as they are written in the legislative arm. This is accompanied by the enforcement of the laws given to the executive arm of government (Brudney, 1236). However, despite all these roles the Supreme Court has encountered various changes in the way they implement and uphold their jurisdiction. This has been evidenced through the various changes that have been made in the constitution to incorporate other factors that may affect the state at different levels (Kian, 204). One of the areas that have brought about change in the role of the Supreme Court is their ability to deliver more power over the corporations within a nation. This has occurred due to many changes that have emerged with the changing times (Kian, 204). These issues involve the freedom of religion and health insurance as well as other aspects. The Supreme Court has been mandated to give their insight and make appropriate decisions regarding these issues as they bring controversy in the lower courts. It has also brought about changes due to the fact that it issues. The changes in the role of the Supreme Court have come about due to the changes in the rights pertaining religion and health of the people. The Five Right wing has advocated for these changes in order to incorporate the artificial prospects that determine the restrictions against women in terms of the contraceptives accessible to them at their workplaces as provided by the health insurance plans. This also occurs due to the allegations of the court aspects to advocate for the corporations (Kian, 204). They argue that since the corporations ensure the First Amendment rights of freedom of through their financial activities of political propaganda, then there is a need to extend the rights in terms of religion (Kian, 204). Their actions are seen through the influence they impact on the results of the states elections. The Supreme Court has been challenged to consider that fact that corporations have impacted the people in terms of whom or what determines the elections. Therefore, they should consider religious choices in the corporations as they have more say in the personal and moral judgments who take part in the corporations (Kian, 204). The Supreme Court has changed its roles in order to involve the ideologies of other people or corporations given within the Constitution depending on the political opinions and partisan needs. This has brought about the issues of using legal aspects that ensure some form of ruling (Kian, 204). The Constitution allows people to make their rights depending on the Voting Rights Act. Amendments have been made in order to incorporate those people who have more impact on the nation. For instance, there were many reasons given for the razing of the Voting Rights regardless of the Fifth Amendment made in the constitution that mandated the Congress to react to any measures that seemed necessary for ensuring the voting rights among the minorities categorized due to race (Kian, 204). Similarly, the Five Right wing initiated a right that that limited the states against behaviors of discrimination in order to facilitate the input of Republicans and right-wingers towards winning the elections (Kian, 204). In addition to this, the Supreme Court has been mandated to change their roles in order to give a justified ruling on the aspects that keep emerging every now and then. They have changed their roles due to the amendments made that alter the decisions or perspective of the justices due to the impact the issue might have on the society. For instance, the issue of gay married has brought about many controversies as lower courts have encountered conflicting opinions in terms of the cases (Sill, 59). Many issues have emerged over this issue as amendments have altered the classic policies that were issued depending on the rights of people. The freedom of expression has raised concerns and impacted the Supreme Court as many people have argued that it should incorporate even the minority groups (Sill, 59). This has driven them to change their ruling and issuing of decisions as they would not want to impact the nature of the ability of people to vote. Similarly, this is an essential matter that requires much deliberation as it might impact the decision made by the people. Therefore, the Supreme Court has had to change their ruling and ensuring that the policies do not alter the directions taken by the people. It might also involved the changing the laws and policies ensured by the legislative and executive arms of government (Sill, 59). Changes in the role of the Supreme Court have occurred in terms of the way it impact the voting process. These changes are made in order to avoid the instability of the nation or ensuring that the appropriate leader gets to power (Sill, 59). Justices have over the years made rulings over the issues of the voting process where for instance they stopped the vote counting process in the year 2000 which saw Bush rise to power (Sill, 59). This was regardless of the fact that George W. Bush’s opponent Al Gore had gained more votes. The change came about due to the fact that he was considered the appropriate leader. He was also the favored by the justices in the five right wing where the justices issued issues to hinder the process of counting votes as there were issues related to the tallying of votes. This would have altered and affected the image for President Bush (Sill, 59). In addition to this, the roles of the Supreme Court have changed over the years due to the amendments in the constitution where Obamacare has brought about controversies that need deliberation. The Affordable Act that was enacted in 2012 where Justices rejected the clause that initiated the commerce act that was the major aspect that supported the law. It also brought about the aspect where the Five Right Wing which enabled the leaders elected had the mandate of enacting the decision that they deemed appropriate. It also allowed them to meet to the demands of the welfare of the public. These powers within the Supreme Court enable it to regulate commerce between states. The ideal role of the Supreme Court involves ensuring that the justices to be given a specialized platform where they would address the issues. Their roles have revolved into allowing the people to seek public notifications over the issues that bring about controversies. They have initiated the issues over the media coverage in terms the issues that are beliefs and identities of the experiences of the justices. It also involves maintaining the nominations and confirmations to be upheld by the court. This should be observed through the way they maintain the constitution and ensure that all the rights of people by conforming to the changes made in the evolving world.

Works Cited

Brudney, James J.; Ditslear, Corey. "THE WARP AND WOOF OF STATUTORY INTERPRETATION: COMPARING SUPREME COURT APPROACHES IN TAX LAW AND WORKPLACE LAW." Duke Law Journal 58.7 (2009): 1231-1311. Web. Kian, Sina. "THE PATH OF THE CONSTITUTION: THE ORIGINAL SYSTEM OF REMEDIES, HOW IT CHANGED, AND HOW THE COURT RESPONDED." New York University Law Review 87.1 (2012): 136-207. Web. Sill, Kaitlyn L.; Metzgar, Emily T.; Rouse, Stella M. "Media Coverage of the U.S. Supreme Court: How Do Journalists Assess the Importance of Court Decisions?" Political Communication 30.1 (2013): 58-80. Web.

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The Supreme Court

OpenStax and Lumen Learning

Learning Objectives

By the end of this section, you will be able to:

Analyze the structure and important features of the Supreme Court
Explain how the Supreme Court selects cases to hear
Discuss the Supreme Court’s processes and procedures

The Supreme Court of the United States, sometimes abbreviated SCOTUS, is a one-of-a-kind institution. While a look at the Supreme Court typically focuses on the nine justices themselves, they represent only the top layer of an entire branch of government that includes many administrators, lawyers, and assistants who contribute to and help run the overall judicial system. The Court has its own set of rules for choosing cases, and it follows a unique set of procedures for hearing them. Its decisions not only affect the outcome of the individual case before the justices, but they also create lasting impacts on legal and constitutional interpretation for the future.

THE STRUCTURE OF THE SUPREME COURT

The original court in 1789 had six justices, but Congress set the number at nine in 1869, and it has remained there ever since. There is one chief justice , who is the lead or highest-ranking judge on the Court, and eight associate justices . All nine serve lifetime terms, after successful nomination by the president and confirmation by the Senate. There was discussion of expanding the court during Franklin D. Roosevelt’s presidency and also during the 2020 presidential election. Nothing has come of court expansion, however.

The current court is fairly diverse in terms of gender, religion (Christians and Jews), ethnicity (African, European and Latina or Hispanic Americans), and ideology, as well as length of tenure. Some justices have served for three decades, whereas others were only recently appointed by Presidents Trump and Biden. Figure 1 lists the names of the nine justices serving on the Court as of April 2022, along with their year of appointment and the president who nominated them.

A chart titled Appointments of the Current Supreme Court Justices

Currently, there are six justices who are considered part of the Court’s more conservative wing—Chief Justice Roberts and Associate Justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett—while two are considered more liberal-leaning—Justices Sotomayor and Kagan. Following the retirement of Justice Stephens, the Senate on April 7, 2022, by a 53-47 vote affirmed Judge Ketanji Brown Jackson as the 116th Justice. Dr. Jackson is the first and only justice with experience as a public defender, and she is the first Black woman to serve on the court.

Image A is of Justice Sonia Sotomayor. Image B is of Justice Brett Kavanaugh. Image C is of Justice John Roberts. Image D is of Judge Jackson.

LINK TO LEARNING

While not formally connected with the public the way elected leaders are, the Supreme Court nonetheless offers visitors a great deal of information at its official website.

For unofficial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website or SCOTUS blog.

In fact, none of the justices works completely in an ideological bubble. While their numerous opinions have revealed certain ideological tendencies, they still consider each case as it comes to them, and they don’t always rule in a consistently predictable or expected way. Furthermore, they don’t work exclusively on their own. Each justice has three or four law clerks, recent law school graduates who temporarily work for the justice, do research, help prepare the justice with background information, and assist with the writing of opinions. The law clerks’ work and recommendations influence whether the justices will choose to hear a case, as well as how they will rule. As the profile below reveals, the role of the clerks is as significant as it is varied.

INSIDER PERSPECTIVE

Profile of a United States Supreme Court Clerk

A Supreme Court clerkship is one of the most sought-after legal positions, giving “thirty-six young lawyers each year a chance to leave their fingerprints all over constitutional law.” [1] A number of current and former justices were themselves clerks, including Chief Justice John Roberts, Justices Stephen Breyer and Elena Kagan, and former chief justice William Rehnquist.

Supreme Court clerks are often reluctant to share insider information about their experiences, but it is always fascinating and informative to hear about their jobs. Former clerk Philippa Scarlett, who worked for Justice Stephen Breyer, describes four main responsibilities: [2]

Review the cases: Clerks participate in a “ cert. pool” (short for writ of certiorari , a request that the lower court send up its record of the case for review) and make recommendations about which cases the Court should choose to hear.

Prepare the justices for oral argument: Clerks analyze the filed briefs (short arguments explaining each party’s side of the case) and the law at issue in each case waiting to be heard.

Research and draft judicial opinions: Clerks do detailed research to assist justices in writing an opinion, whether it is the majority opinion or a dissenting or concurring opinion.

Help with emergencies: Clerks also assist the justices in deciding on emergency applications to the Court, many of which are applications by prisoners to stay their death sentences and are sometimes submitted within hours of a scheduled execution.

Explain the role of law clerks in the Supreme Court system. What is your opinion about the role they play and the justices’ reliance on them?

HOW THE SUPREME COURT SELECTS CASES

The Supreme Court begins its annual session on the first Monday in October and ends late the following June. Every year, there are literally thousands of people who would like to have their case heard before the Supreme Court, but the justices will select only a handful to be placed on the docket , which is the list of cases scheduled on the Court’s calendar. The Court typically accepts fewer than 2 percent of the as many as ten thousand cases it is asked to review every year. [3]

Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade , for example. [4] For a case on appeal, you can tell which party lost at the lower level of court by looking at the case name: The party unhappy with the decision of the lower court is the one bringing the appeal and is thus the petitioner, or the first-named party in the case. For example, in Brown v. Board of Education (1954), Oliver Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination based on racial segregation.

Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari , a request that the lower court send up its record of the case for review. Once a writ of certiorari ( cert . for short) has been granted, the case is scheduled on the Court’s docket. The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine justices must vote to accept a case. This is called the Rule of Four .

For decisions about cert ., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari ) takes precedence. [5] The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the Court will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election. [6]

Past research indicated that the amount of interest-group activity surrounding a case before it is granted cert. has a significant impact on whether the Supreme Court puts the case on its agenda. The more activity, the more likely the case will be placed on the docket. [7] But more recent research broadens that perspective, suggesting that too much interest-group activity when the Court is considering a case for its docket may actually have diminishing impact and that external actors may have less influence on the work of the Court than they have had in the past. [8] Still, the Court takes into consideration external influences, not just from interest groups but also from the public, from media attention, and from a very key governmental actor—the solicitor general.

The solicitor general is the lawyer who represents the federal government before the Supreme Court: He or she decides which cases (in which the United States is a party) should be appealed from the lower courts and personally approves each one presented. Most of the cases the solicitor general brings to the Court will be given a place on the docket. About two-thirds of all Supreme Court cases involve the federal government. [9]

The solicitor general determines the position the government will take on a case. The attorneys of the office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court.

Image A is of Justice Thurgood Marshall. Image B is of Noel Francisco.

In other cases in which the United States is not the petitioner or the respondent, the solicitor general may choose to intervene or comment as a third party. Before a case is granted cert. , the justices will sometimes ask the solicitor general to comment on or file a brief in the case, indicating their potential interest in getting it on the docket. The solicitor general may also recommend that the justices decline to hear a case. Though research has shown that the solicitor general’s special influence on the Court is not unlimited, it remains quite significant. In particular, the Court does not always agree with the solicitor general, and “while justices are not lemmings who will unwittingly fall off legal cliffs for tortured solicitor general recommendations, they nevertheless often go along with them even when we least expect them to.” [10]

Some have credited Donald B. Verrilli, the solicitor general under President Obama, with holding special sway over the five-justice majority ruling on same-sex marriage in June 2015. Indeed, his position that denying same-sex couples the right to marry would mean “thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships” became a foundational point of the Court’s opinion, written by then-Justice Anthony Kennedy. [11] With such power over the Court, the solicitor general is sometimes referred to as “the tenth justice.”

SUPREME COURT PROCEDURES

Once a case has been placed on the docket, briefs , or short arguments explaining each party’s view of the case, must be submitted—first by the petitioner putting forth his or her case, then by the respondent. After initial briefs have been filed, both parties may file subsequent briefs in response to the first. Likewise, people and groups that are not party to the case but are interested in its outcome may file an amicus curiae (“friend of the court”) brief giving their opinion, analysis, and recommendations about how the Court should rule. Interest groups in particular can become heavily involved in trying to influence the judiciary by filing amicus briefs—both before and after a case has been granted cert . And, as noted earlier, if the United States is not party to a case, the solicitor general may file an amicus brief on the government’s behalf.

With briefs filed, the Court hears oral arguments in cases from October through April. The proceedings are quite ceremonial. When the Court is in session, the robed justices make a formal entrance into the courtroom to a standing audience and the sound of a banging gavel. The Court’s marshal presents them with a traditional chant: “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! [Hear ye!] All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!” [12] It has not gone unnoticed that the Court, which has defended the First Amendment’s religious protection and the traditional separation of church and state, opens its every public session with a mention of God.

During oral arguments, each side’s lawyers have thirty minutes to make their legal case, though the justices often interrupt the presentations with questions. The justices consider oral arguments not as a forum for a lawyer to restate the merits of the case as written in the briefs, but as an opportunity to get answers to any questions they may have. [13] When the United States is party to a case, the solicitor general (or one of the solicitor general’s assistants) will argue the government’s position; even in other cases, the solicitor general may still be given time to express the government’s position on the dispute.

When oral arguments have been concluded, the justices have to decide the case, and they do so in conference , which is held in private twice a week when the Court is in session and once a week when it is not. The conference is also a time to discuss petitions for certiorari , but for those cases already heard, each justice may state their views on the case, ask questions, or raise concerns. The chief justice speaks first about a case, then each justice speaks in turn, in descending order of seniority, ending with the most recently appointed justice. [14] The judges take an initial vote in private before the official announcement of their decisions is made public.

Oral arguments are open to the public, but cameras are not allowed in the courtroom, so the only picture we get is one drawn by an artist’s hand, an illustration or rendering. Cameras seem to be everywhere today, especially to provide security in places such as schools, public buildings, and retail stores, so the lack of live coverage of Supreme Court proceedings may seem unusual or old-fashioned. Over the years, groups have called for the Court to let go of this tradition and open its operations to more “sunshine” and greater transparency. Nevertheless, the justices have resisted the pressure and remain neither filmed nor photographed during oral arguments. [15]

CHAPTER REVIEW

See the Chapter 13.4 Review for a summary of this section, the key vocabulary , and some review questions to check your knowledge.

Dahlia Lithwick. "Who Feeds the Supreme Court?" Slate.com. September 14, 2015. http://www.slate.com/articles/news_and_politics/jurisprudence/2015/09/supreme_court_feeder_judges_men_and_few_women_send_law_clerks_to_scotus.html . ↵
"Role of Supreme Court Law Clerk: Interview with Philippa Scarlett." IIP Digital. United States of America Embassy. http://iipdigital.usembassy.gov/st/english/publication/2013/02/20130211142365.html#axzz3grjRwiG (March 1, 2016). ↵
"Supreme Court Procedures." United States Courts. http://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (March 1, 2016). ↵
Roe v. Wade, 410 U.S. 113 (1973). ↵
"Rule 10. Considerations Governing Review on Certiorari." Rules of the Supreme Court of the United States. Adopted April 19, 2013, Effective July 1, 2013. http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf . ↵
Bush v. Gore, 531 U.S. 98 (2000). ↵
Gregory A. Caldeira and John R. Wright. 1988. "Organized Interests and Agenda-Setting in the U.S. Supreme Court," American Political Science Review 82: 1109–1128. ↵
Gregory A. Caldeira, John R. Wright, and Christopher Zorn. 2012. "Organized Interests and Agenda Setting in the U.S. Supreme Court Revisited." Presentation at the Second Annual Conference on Institutions and Lawmaking, Emory University. http://polisci.emory.edu/home/cslpe/conference-institutions-law-making/2012/papers/caldeira_wright_zorn_cwzpaper.pdf . ↵
"About the Office." Office of the Solicitor General. The United States Department of Justice. http://www.justice.gov/osg/about-office-1 (March 1, 2016). ↵
Ryan C. Black and Ryan J. Owens. "Solicitor General Influence and the United States Supreme Court." Vanderbilt University. http://www.vanderbilt.edu/csdi/archived/working%20papers/Ryan%20Owens.pdf (March 1, 2016). ↵
Mark Joseph Stern., "If SCOTUS Decides in Favor of Marriage Equality, Thank Solicitor General Don Verrilli," Slate.com. April 29, 2015. http://www.slate.com/blogs/outward/2015/04/29/don_verrilli_solicitor_general_was_the_real_hero_of_scotus_gay_marriage.html . ↵
"The Court and its Procedures." Supreme Court of the United States. May 26, 2015. ↵
Jonathan Sherman. "End the Supreme Court's Ban on Cameras." New York Times. 24 April 2015. http://www.nytimes.com/2015/04/24/opinion/open-the-supreme-court-to-cameras.html . ↵

the highest-ranking justice on the Supreme Court

a member of the Supreme Court who is not the chief justice

the list of cases pending on a court’s calendar

an order of the Supreme Court calling up the records of the lower court so a case may be reviewed; sometimes abbreviated cert.

a Supreme Court custom in which a case will be heard when four justices decide to do so

the lawyer who represents the federal government and argues some cases before the Supreme Court

a written legal argument presented to a court by one of the parties in a case

literally a "friend of the court" and used for a brief filed by someone who is interested in but not party to a case

words spoken before the Supreme Court (usually by lawyers) explaining the legal reasons behind their position in a case and why it should prevail

closed meeting of the justices to discuss cases on the docket and take an initial vote

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Using the papers of u.s. supreme court justices: a reflection.

Stephen Wermiel Follow

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Publication date.

January 2012

This essay examines the benefits and drawbacks of writing about the U.S. Supreme Court using the papers' of the Justices and how the work of Professor James F Simon highlights the benefits. The benefits are that the Justices' papers provide invaluable understanding of the Court's decisionmaking process, the influences that are significant, and how much substance actually matters. The papers shed light on why important legal doctrines developed in certain ways and what arguments held sway, identify rules that may be on thin ice in terms of underlying support, and show the nature of the working relationships among the Justices, which are critical to the Court's ability to function, and what happens if and when those relationships break down. The drawbacks that may derive from using the Justices' papers include treating the notes ofJustices at their private conferences as verbatim summaries of discussions, using evidence of internal uncertainty and division on the Court in close cases to attack the validity of Court rulings, and overinterpreting critical or negative comments in documents to reflect rifts or feuds where none may have actually existed or where the context may be different than what a Justice intended. This essay will briefly plot the historical development of reliance on the papers of Justices for Supreme Court research and will then reflect on some of the benefits and drawbacks, drawing on examples in the work of Professor Simon and others who have written about the Court.

Recommended Citation

Stephen Wermiel, Using the Papers of U.S. Supreme Court Justices: A Reflection , 57 New York Law School Law Review 499 (2012). Available at: https://digitalcommons.wcl.american.edu/facsch_lawrev/985

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218 Essay about Court Examples & Topics

Need to write an essay about court system? Looking for a court case essay example? The issues of law and crimes are crucial in society are fascinating and worth exploring!

🏆 Best Court Topics for Essays

⚖️ court system essay topics, 👍 a+ court case essay examples, 👨‍⚖️ essay about court: samples, 💡 top judicial essay topics, ✍️ court essay topics for college.

In your court system essay, you might want to focus on American judicial system. Another idea is to discuss the theory and functions of criminal courts. One more option is to find some interesting legal issues and discuss them. Whether you’re planning to write an argumentative or analysis essay, this article will be helpful. It contains interesting court system essay examples, judicial essay topics, and ideas for your court essay.

The Criminal Trial: Court Observation Report In this case, the accused was found guilty of the crime and the outcome of the judgment was that he would serve a minimum of ten years in prison.
Joseph Haydn’s Contract With the Esterhazy Court Joseph Haydn’s contract for work at the Esterhazy Court is a distinctive document that needs to be preserved because it explains the authorities’ attitudes to the music and composers in the eighteenth century.
“Supreme Revenge: Battle for the Court”: Documentary Analysis The content of the documentary is proof that the Judiciary is a political playfield for the Democratic and the Republican parties as they struggle for control.
Benefits of Three-Tier Court System In the three-tier court system, there are the trial courts, the first appellate courts, and the U.S. Thus, the three-tier court system consists of a regional court, an appellate court, and a supreme court.
People vs. O’Neil Supreme Court Desicion In addition to the murder and involuntary manslaughter charges, the jury also charged the individual and corporate defendants with reckless conduct. Secondly, the defendants argued that the murder charges were inconsistent with the involuntary manslaughter […]
Court Structure in England and Wales The article below illustrates the hierarchical arrangement of the court structure in England and Wales. In England and Wales, the Supreme Court is the utmost court of petition.
Harris vs. Forklift Systems Supreme Court Case The inference from this view is that Charles Hardy did not deprive Teresa Harris of equal rights for employment and was a person who was taught to disrespect women.
International Court of Justice: Definition, History and Importance The purpose of the court is to serve as the organ of judicial arbitration between countries that are members of the United Nations; it is also the organ that gives legal advice to the UN […]
Hearsay Evidence and Witness Testimony in Court A statement is only considered as hearsay if the objective of the testimony being presented is to prove the truth of its contents.
Court Hearing Visit Report Despite the need to uphold the principle of the open justice, some courts are held in camera, that is, they are not open to the public.
Enea vs. Superior Court of Monterey County: Case Analysis The issue for determination is if actions that have a negative impact on the profits of the business constitute a breach of fiduciary duty, even though the partnership agreement does not specifically ban such behavior.
Why Juveniles Should Be Tried in Adults’ Court? Secondly, juveniles should be tried in adults’ court to reduce and minimize crime in the society. When a juvenile commits a crime such as murder, the effects are overwhelming in the society and the impact […]
“The Supreme Court: Home to America’s Highest Court” Documentary In this documentary, Chief Justice John Roberts discusses the principal goal of the Supreme Court and the West Plaza, the site of several public protests.
Expert Witnesses and Testimony in Four Court Cases The first case that was linked to the admissibility of expert evidence was Frye v.the United States, in 1923. The Kumho case expanded the use of Daubert and Joiner guidelines to any expert evidence.
Larry Hillblom: Should Larry Junior Go to Court or Settle? Due to the fact that he did not stipulate that illegitimate children would be unable to receive an inheritance, anyone who could prove themselves to be a child of Larry Hillblom would be a legitimate […]
The World Court or International Court of Justice All of the cases of the Court are submitted to the Registrar and when the Registrar receives the case, it is dated based on the date of receipt by the Registrar.
The Juvenile Division of the Court The present paper looks into the problems and advantages that may arise in using the individual case management system and permanently assigning a judge to the juvenile division of the court.
Theory of Negligence Advance in High Court in Australia One such value judgment is the capacity to proof that the damage caused to the plaintiff was foreseeable in the most reasonable sense by a reasonable individual in a similar position as the defendant during […]
Roberts Court and Its Political Relations The supreme court of the Unites States has been the upholder of the fundamental and basic human rights; however, in recent times the decisions passed by the court has demonstrated an inclination towards the conservative […]
Trials and Verdicts in the Court Proceedings The presiding judge of the high court further confirmed that the regional adjudicator granted a fine that was to be paid by the appellant through a third party to compensate the petitioner.
The International Criminal Court Thus, it is essential to formulate the strengths and weaknesses of the ICC and Victor’s justice and to describe the relationship with the U.S.
United States Supreme Court Justices It should be noted that the role of judges is to guarantee fair decisions to the parties to the process. Accordingly, in an adversarial process, the role of the judge is to control the process […]
Supreme Court’s Decision in McGirt v. Oklahoma In my view, the ruling revealed the fact that Oklahoma has, for a long time, ignored the requirement that Congress is the sole entity with the power to establish the boundaries of a tribal reservation.
Nurses in the Court, Licensure, and Regulation Nursing licensure refers to the process in various regulatory bodies, such as the Board of Nursing, to ensure that the nursing practices are within its jurisdiction.
The American Government and Supreme Court Composition If the current Supreme Court judges were to hear the case, they still would uphold the ruling because it reflects their beliefs of defining the US as a haven dedicated to respecting human rights and […]
Court Cases Concerning Nursing Education In the process, the question is whether the court’s ruling in favor of the nurse and against the doctor can be justified by a sufficient purpose.
The Griffin vs. California Supreme Court Case In the court, Griffin refused to testify, and according to a prosecutor, the defendant’s choice was evidence of guilt. In turn, it is the responsibility of the prosecution to prove the defendant’s guilt based on […]
Discussion Thread: International Court As well known, in the aftermath of World War II, the Allies proposed the creation of an international court for the persecution of war criminals, which became known as the International Court of Justice, later […]
State vs. Anderson: Supreme Court Summary With its main purposes to obtain, store, and review information received from fingerprints, the AFIS system is fundamental in the investigation of criminal cases.
Supreme Court: Originalism and Textualism Regardless of the decision to be made, conservative Supreme Court Justices are going to be split because of the misinterpretations of the new approach called textualism.
European Court of Justice Case Analysis Therefore, the company’s vehicles that featured the defeat device in the engine were prohibited per Article 5 of Regulation No 715/2007.
Being Outside International Criminal Court Jurisdiction The regime gives the ICC power to assert its jurisdiction in that particular nation as long it is a member nation of the court.
Employee Benefits Program for Supreme Court Justice They are also a guarantee of the independence of the Supreme Court Justice representative in the performance of his duties. In case of the death of a representative of the Supreme Court Justice related to […]
United States vs. Nixon Landmark Supreme Court Decision Nixon case happened in 1974 is one of the most critical decisions of the Supreme Court of the United States because it rejected the privileges that the head of the state supposedly had.
The Supreme Court Chief Justice Position: Recruitment Plan Afterward, the Chief Justice of the Supreme Court must be appointed by the President, with the following approval by the Senate. As a result, fairness and the absence of bias in court judgment will be […]
Transferring a Defendant to an Adult Court In the given case, it seems pretty challenging to transfer the defendant to the adult court due to the number of mental challenges.
Legal Trends of In-Court Accommodations This study by Celik owes that disclosure of cases of child sexual abuse is directly related to the individual and environmental factors in different age groups.
Section 2339B of the US Code in Court Case To begin, the court concluded that the legislation was clear since the sections of the Act that pertained to the plaintiffs’ anticipated behavior were specified explicitly.
The Sanowicz vs. Bacal Court Appeal Case I would like to appeal to the decision made by the Court that has concluded that a referral fee must be paid despite the lack of the necessary agreement.
Addressing and Respecting Citizens’ Rights in Supreme Court Facts of The Case: Harriet Louise Adderley is the representative of the group of protesting students. The primary aim of the students was to protest for the releasing their black friends from the non-public prison.
The Supreme Court’s Cancellation of Vaccines One of the points of view is that the COVID situation is getting worse, and the mandate was a logical continuation of Biden’s policy to combat coronavirus.
The Brewer vs. Williams Supreme Court Case Williams became the main suspect of the young girls’ abduction after a young boy confessed to have seen him at the YMCA packing his car a large bundle of clothes with “skinny and white legs” […]
Greenman vs. Yuba Supreme Court Case As the result of the trial before the jury, the court acquitted the third party of this conflict the retailer where Mr.
McKinney vs. Arizona Case and Court Decision The Arizona Supreme Court upheld the state appellate jury’s ruling, holding that a court may perform a re-evaluation of the contributing instead of a jury in cases involving the death sentence.
Civil War and Supreme Court: The Enforcement of the Slave-Trade Laws I believe the leading causes of the American Civil war were the fight over the moral issue of slavery and political differences between the Southern and Northern American states.
The Supreme Court Decision on the Right to Same-Sex Marriage The decision of the Supreme Court on the constitutional right of citizens to same-sex marriage is a significant event in the history of the development of modern democratic society.
Diana Levine vs. Wyeth at the Supreme Court Diana Levine sued Wyeth at the Vermont Supreme Court, seeking compensation from the defendant for improperly written instructions to Phenergan that resulted in the amputation of one of the plaintiff’s limbs; litigation continued in the […]
Washington vs. Texas Court Case No. 649: Issue, Facts, and Summary Still, the court authorities denied him a request to listen and consider the testimony of a witness or an accomplice, because of which the court’s verdict turned in the opposite direction.
Marbury vs. Madison: A Landmark Supreme Court Case However, one of these judges, William Marbury, wanted to ask the Supreme Court to issue a writ of mandamus, a mandate, meaning that something that happened in case of his appointment would not be delivered […]
Supreme Court’s Decision in Tinker vs. Des Moines Nevertheless, the court protected the school and claimed the reasonability and fairness of its actions regarding the suspension of the students.
Criminal Court System in U.S. As a result, one gains an in-depth insight into the subject matter and becomes capable of improving it to reduce the threat of a mistrial, The stages of a court process may vary depending on […]
Louisiana District Court: Role, Structure, and Jurisdiction Criminal District Court in Orleans Parish has supervisory jurisdiction over the municipal and traffic courts. There is a total of 42 district courts in the state, executing jurisdiction of criminal and property-related cases.
Court Proceedings Experiential Report The practical experiences of the proceedings both confirmed and challenged some of the information that I have learned about the structure of a trial.
Intellectual Property: The Supreme Court’s Ruling in Eldred vs. Ashcroft The other relevant information to be shared on the basis of this case encompasses the copyright and patent clause that accords the Congress with the power to provide authors the authority of controlling the use […]
The Institution of the US Supreme Court The institution was designed as a check on the power of the legislative and the executive branches of the federal government.
The Supreme Court’s Internet Sales Tax Decision The added input leads to an increase in products’ prices, making it hard for e-commerce startups to compete with other large-scale retailers and wholesalers.
A Comparison and Contrast of Two Court Rulings Furthermore, he or she has a duty to act in the protection of others should a patient present a threat. In a situation closer to that in Estates of Morgan v.
Using Victim Impact Statements and Defendant’s Sentencing Memorandums in Court Thus, I consider these documents to be of high importance, and the jurisdiction should give it more attention the punishments will only become more realistic.
Alternative to Incarceration (ATI), Treatment Court The Los Angeles County Department of Mental Health later developed a forensic mental health court diversion program that offered consultation services to courts on the management of criminals with psychiatric illnesses.
Vehicle Searches: The Carroll vs. US Court Case However, the court upheld that in line with the Fourth Amendment of the constitution, the security agents had to prove that they had a legitimate lead making them believe that the particular vehicle had contraband […]
Court Observation: Ausar Walcott’s Trial Some of the information to be presented includes the names of the parties in the suit, a summary of key facts, the jury’s verdict, and the relevant legal issues.
How Canada’s Supreme Court Affected Administrative Law Principles The protection of the rights of a claimant should respond to the statutory scheme in an administrative decision and expectations of procedural protection.
Conflicting Cases and the Contemporary Court Systems This paper will compare the constitutional framework of the U.S.and the UK, The cases in which the existing regulations collide with the essential Constitutional premises are quite few, yet they set the prime example of […]
Court Rulings on Confidentiality in Healthcare In both Tarasoff and Morgan, the therapists contacted the relevant authorities in favor of the victim’s safety. The cases showed that individuals have a moral obligation to make decisions that infringe private information in favor […]
Current Issues of Supreme Court Confirmation Process This fact ensures that the confirmation process is impartial, which contributes to the effectiveness of the Supreme Court by endorsing the candidates who have the most suitable skills and knowledge to occupy this position.
Bordenkircher vs. Hayes, the United States Supreme Court, 1978 Is the Due Process Clause of the Fourteenth Amendment violated if, in the course of plea bargaining, a state prosecutor threatens the accused to be indicted on more severe charges if the respondent does not […]
Court Observation in Courts of Sydney Once inside the courtroom, he sits at the bench facing the rest of the court.the defense lawyers sit in the left side of the court, close to the dock, while the prosecution sits on the […]
Court Cases Showing Various Law Arguments After further inquisitives, the Supreme Court realized that the need for the second appeal by the plaintiff was of no need.
Current and Future Issues Facing Courts and Court Administrators The system of courts is structured in a way that both the innocent and the guilty have a chance to be heard.
Court of Justice of the European Union (CJEU) and Consumer Contracts According to the European Commission, the solutions to such complex systems are in the freedom of contract. Rules may limit freedom of contract in some member states of the EU.
The Practice of Sealing Juvenile Court Records The practice of sealing juvenile’s court records is indeed acceptable practice to some extent in most countries in the world. Recent surveys as analyzed in the article indicate that the locations where juvenile records are […]
The Role of Expert Witness in Court Some court cases may require the services of an expert to enable the jurors and judges to have a better understanding of the underlying principles of the case in question.
Design of a Drug Court System Offenders have a strong incentive in being members of the Drug Court in that they have the prospect of avoiding being in jail for as long as they abide by the rules and cooperate in […]
Trial Court Functions, the Concepts of Schlichmann The term preponderance of the evidence means that the side that would provide greater evidence concerning the case would lead either the judge or the jury to take one side as opposed to the other.
Juvenile Court System: 15-Year-Old Larceny Offender The facts of the case show that the juvenile is a first offender and is yet to attain the minimum age for criminal prosecution according to the state’s juvenile justice system.
The United States State and Federal Court Systems For example, if a person has a bank account in a particular state, then he or she is under the jurisdiction of this state’s court.
Supreme Court Eras. Brown vs. Board of Education The primary purpose of the paper is to provide the in-depth analysis regarding a possible decision made by the Supreme Court of the United States regarding the case Brown v.
Intake Officers in Juvenile Court System The final duty of the Intake officer is to determine whether it would be safe to release the juvenile or not.
Court Unification and Juvenile Delinquency Speaking about the given issue, it is important to give the clear definition of this category and determine who could be judged by the juvenile court.
The Warren Court’s Rulings and Criminal Procedure Police also inform the suspects that they have the right to an attorney that will be provided to them by the state if they cannot afford one.
Court Requirements in Aguilar and Gates Cases However, the Supreme Court’s requirements for testing the validity of the evidence were not congruent: the major diversion point was the reliability of the source of information used in the process of the investigation.
The R v Gordon Wood Case and Court Decision It was brought to the attention of the judge that a week before Caroline was found dead, she had been seen in the company of the accused at a city fitness centre.
Policing and the Bill of Rights: Supreme Court Cases Jones case, the placement of a GPS device under a suspect’s car was interpreted as a violation of the Fourth amendment by the Supreme Court. In the United States v.
Lechmere vs. National Labor Relations Board: Supreme Court’s Decision Lechmere Inc did not allow the organizers to use the lot, and they opted to use the public strip of land to distribute the handbills to employees entering in the morning and leaving in the […]
Complex Foundations: Nottingham Magistrate Court The glass material used to form the walls of the court requires a strong support, hence the choice of the piling method.
FCT V Stone : Court Case Analysis In particular, the court had to decide if the athletic activities of this person could be regarded as a form of business.
Plea Bargaining in the Court System This is one of the main arguments that can be put forward. These are some of the suggestions that can be made.
Bail and Pre-Trial Release Conditions Impact on Court Systems In this journal, Clark informs the world how the state of pre-trial release in tribal jurisdiction operates in the United States.
Systematic Review of Drug Court Effects on Recidivism Although the article does not state the specific research question or hypothesis for the study, it is clear that the study wanted to address the question “what is the impact of drug courts on recidivism […]
Effectiveness of the DUI Court In the last one decade, the relative success of drug courts has led to the establishment of a growing number of driving while impaired or driving under the influence courts across the U.S.
The Structure of the US Court System and Determination of Truth There have been suggestions to study the inquisitorial system and adopt some of its features that could help to improve the determination of truth under the US adversarial system. It is thus advisable to redesign […]
Jury Selection in Court First of all, some attorneys will hire psychologists to analyze the prospective jury pool and help pick out which jurors would be the most effective for the case at hand.
In re Yamashita Case and Supreme Court’s Decision As a result, General Yamashita was the commander of all Japanese forces that were operating in Philippine, so he was responsible for their actions.
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Accountability of Court Officials Therefore, just like the politicians and the government which is accountable to the citizens of the country, the judicial system is accountable to the citizens.
Court Decisions that Influence Juvenile Justice System Supreme Court that postulated that an underage person is eligible to the rights of due process, namely the right to obtain counsel, the right to be notified about the charges, and the right to encounter […]
Is There a Gender Bias in the USA Court System? The truth of the matter is there is gender bias in the United States court system. Another factor that underlines gender bias in United States courtroom is the number of female lawyers as compared to […]
State Court Statistics Project Statistics show that the state of California has one of the highest court case filings, there are three different courts in California; these courts are spread around the 58 counties of California. Except for California, […]
Juvenile Court Philosophy This philosophy states that a rehabilitation program can prevent the children from committing crimes since it attempts to transform cognitively the distorted cognitive behavior of the child involved in criminal acts.
Gender Bias in Family Court This research study wishes to consider the current scope and resultant impacts of gender bias in the context of family courts in the United States of America.
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Mr. Charles Dempsey Court Case: Cause and Consequences of the Crime The case had gone through the plea hearing, the preliminary hearing the trial hearing and was to be decided on this day during the sentencing hearing where the judge was supposed to deliver the Judgment.
Court Sentencing: Juvenile Status and Unemployment These provisions allowed that based on prior criminal history and in consideration of the current offense, they could be transferred for trial in adults courts.
Dow Jones & Company Inc. vs. Gutnick: The Australian Court’s Conclusion The paper starts with the details of the case, including the factual and procedural background thereof, proceeds to the judgment summary of the case and the analysis of the questions that the court ruling have […]
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Casebrief, Based on the Supreme Court: State V Hoying W L Hoying fully acknowledging the violation of writing to the victim, which is in violation of the civil protection order asked Ms.
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Court Problem and Its Future
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Court Process: Interview Eith the Prosecuting Attorneys
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US Supreme Court’s Role in Criminal Justice System
Criminal Cases in the Supreme Court’s Jurisdiction
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US Supreme Court’s Ideological Tendencies
Supreme Court in New York Times Co. vs. United States
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Brown vs. Plata Case and Supreme Court’s Decision
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The Supreme Court Role in Canadian Politics
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Law: Court Purposes and Responsibilities
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The New Deal and the Role of the Supreme Court
The United States Supreme Court: Marbury vs. Madison
U.S. Supreme Court: Antonin Scalia as a Textualist
Oral Arguments and Decision-Making on the Supreme Court
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Personal Jurisdiction of a Court
Civil Rights Court Case: Griggs vs. Duke Power Co
The Role of the High Court in Australia’s System of Government
High Court of Australia
A Case Against Polygraph Evidence Admissibility in Court
Emperor Xiaowen and His Court
The Supreme Court: Justice Clarence Thomas
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Prima Facie Case: Home Country vs. Foreign Country
International Court of Justice in Hague
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As Supreme Court Reconvenes, Civil Rights Issues in the Fore
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The Warren Court in United States
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Questioning and Criticizing Supreme Court Nominees
The Supreme Court Decision: Bank of Augusta vs. Earle
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Chicago (A-D)
Chicago (N-B)

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Justice Breyer, Off the Bench, Sounds an Alarm Over the Supreme Court’s Direction

In an interview in his chambers and in a new book, the justice, who retired in 2022, discussed Dobbs, originalism and the decline of trust in the court.

Justice Stephen G. Breyer sitting for a portrait with his hands beneath his chin wearing a dark suit and red tie in front of a pink wall.

By Adam Liptak

Reporting from Washington

Justice Stephen G. Breyer’s Supreme Court chambers are not quite as grand as those he occupied before he retired in 2022, but they are still pretty nice. As before, they include a working fireplace, which was crackling when I went to visit him on a temperate afternoon in late February to talk about his new book.

In earlier interviews , Justice Breyer could be rambling and opaque. This time he was direct. He said he meant to sound an alarm about the direction of the Supreme Court.

“Something important is going on,” he said. The court has taken a wrong turn, he said, and it is not too late to turn back.

The book, “Reading the Constitution: Why I Chose Pragmatism, Not Textualism,” will be published on March 26, the day the Supreme Court hears its next major abortion case , on access to pills used to terminate pregnancies.

The book devotes considerable attention to Dobbs v. Jackson Women’s Health Organization , the 2022 decision that eliminated the constitutional right to abortion. Justice Breyer, who had dissented, wrote that the decision was stunningly naïve in saying it was returning the question of abortion to the political process.

“The Dobbs majority’s hope that legislatures and not courts will decide the abortion question will not be realized,” he wrote.

He was more forceful during the interview. “There are too many questions,” he said. “Are they really going to allow women to die on the table because they won’t allow an abortion which would save her life? I mean, really, no one would do that. And they wouldn’t do that. And there’ll be dozens of questions like that.”

The book is a sustained critique of the current court’s approach to the law, one that he said fetishizes the texts of statutes and the Constitution, reading them woodenly, without a common-sense appreciation of their purpose and consequences.

Without naming names, he seemed to call on the three members of the court appointed by President Donald J. Trump — Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett — to reconsider how they approach the role.

“Recently,” he wrote, “major cases have come before the court while several new justices have spent only two or three years at the court. Major changes take time, and there are many years left for the newly appointed justices to decide whether they want to build the law using only textualism and originalism.”

He added that “they may well be concerned about the decline in trust in the court — as shown by public opinion polls.”

Textualism is a way of interpreting statutes that focuses on their words, leading to decisions that turn on grammar and punctuation. Originalism seeks to interpret the Constitution as it was understood at the time it was adopted, even though, Justice Breyer said in the interview, “half the country wasn’t represented in the political process that led to the document.”

There are three large problems with originalism, he wrote in the book.

“First, it requires judges to be historians — a role for which they may not be qualified — constantly searching historical sources for the ‘answer’ where there often isn’t one there,” he wrote. “Second, it leaves no room for judges to consider the practical consequences of the constitutional rules they propound. And third, it does not take into account the ways in which our values as a society evolve over time as we learn from the mistakes of our past.”

Justice Breyer did not accuse the justices who use those methods of being political in the partisan sense or of acting in bad faith. But he said their approach represented an abdication of the judicial role, one in which they ought to consider a problem from every angle.

In his chambers, he recalled another era, when three different Republican appointees — Justices Sandra Day O’Connor, David H. Souter and Anthony M. Kennedy — largely shared his basic approach to the law.

“Sandra, David — I mean, the two of them, I would see eye to eye not necessarily in the result in every case, but just the way you approach it,” Justice Breyer said. “And Tony, too, to a considerable degree.”

Justice Breyer retired a little reluctantly, under pressure from liberals who wanted to make sure that President Biden could appoint his successor and that the conservative supermajority on the court, currently at 6 to 3, would not get any more lopsided. Justice Ketanji Brown Jackson, a former law clerk to Justice Breyer, now occupies his seat.

Justice Breyer, who was appointed by President Bill Clinton in 1994, has returned to Harvard Law School, where he taught before becoming a judge. But he said he missed his old job.

“When you’re a professor, you’re mostly involved in what people decided already in the past,” he said. “When you’re a judge, you’re also interested in that, but what you’re deciding is going to affect present and future. And that’s hard. Because you don’t really know how it will work out. You have to do your best there. I like that kind of job.”

He shrugged, seeming to contemplate the passage of time. “What can you do?” he asked. “It’s the human condition.”

Justice Breyer’s critics say his approach allows judges too much freedom to turn their preferences into law. I asked him for an example of a case in which the law required him to reach a conclusion at odds with his personal views.

“What about all the capital punishment cases?” he asked. Though he urged the court in a 2015 dissent to reconsider the constitutionality of the death penalty, he did not adopt the practice of some earlier justices of dissenting in every capital case. “That doesn’t mean I approved,” he said.

He added, more generally, that he hoped his book would reach both a broad audience and a narrow one.

“I’d love people to read it,” he said. “I’d like for you to agree with me. So would every author. I’d like even to get the members of this court to read it and to say, ‘Oh, not a bad point. Not a bad point.’ And that’s all.”

Adam Liptak covers the Supreme Court and writes Sidebar, a column on legal developments. A graduate of Yale Law School, he practiced law for 14 years before joining The Times in 2002. More about Adam Liptak

Opinion What we have learned about the Supreme Court’s right-wingers

Supreme Court observers frequently refer to its right-wing majority of six as a single bloc. However, differences among those six have become more apparent over time. Justices Samuel A. Alito Jr.’s and Clarence Thomas’s extreme judicial activism, partisan screeds and ethics controversies put them in a category unto themselves. Meanwhile, Justice Amy Coney Barrett has demonstrated surprising independence.

Watch Justice Barrett.

Not all Republican-appointed judges are the same. In Trump v. Anderson (concerning disqualification under Section 3 of the 14th Amendment of four-times-indicted former president Donald Trump), for example, Barrett, along with Justices Elena Kagan, Ketanji Brown Jackson and Sonia Sotomayor, criticized the maximalist majority opinion, which held that not only could state courts not determine disqualification but that Congress had to act before any candidate could be disqualified from federal office.

Like the so-called liberal justices, Barrett was disinclined to address “the complicated question whether federal legislation is the exclusive vehicle through which Section 3 can be enforced.” The court decided too much, she agreed. Her complaint with the so-called liberal justices was primarily tonal. (“This is not the time to amplify disagreement with stridency.”)

Likewise, in United States v. Texas (considering the stay on enforcement of Texas’s S.B. 4 immigration law ), Barrett, along with Justice Brett M. Kavanaugh, offered the U.S. Court of Appeals for the 5th Circuit an opening to take up the case promptly, which it did, rather than wade into a procedural fight over a stay in a case concerning Texas’s constitutionally suspect law.

As Supreme Court expert Steve Vladeck put it , “The Barrett/Kavanaugh concurrence went out of its way to nudge the Fifth Circuit — noting not only that the Fifth Circuit should be able to rule on the stay pending appeal ‘promptly,’ but that, ‘If a decision does not issue soon, the applicants may return to this Court.’” In essence, Barrett said the Supreme Court would not meddle in a circuit’s administrative business. But if the 5th Circuit actually allowed this constitutional monstrosity to proceed, she would have a different view.

And in Moore v. Harper (the independent state legislature doctrine), Barrett joined in the chief justice’s majority opinion, along with the three Democratic-appointed justices, to bat down the radical notion that state courts have no role in determining alleged violations of state election laws (provided they did “not transgress the ordinary bounds of judicial review”).

Beyond her opinions in high-profile cases, Barrett also sought to repair the court’s reputation damaged by right-wing partisanship. She has started appearing alongside Sotomayor publicly to insist that the court’s ideological combatants are more collegial than they might appear. Perhaps she is.

Barrett is no Sandra Day O’Connor (a true swing justice). Barrett was just as extreme on Roe v. Wade as the other right-wingers. Nevertheless, her efforts to carve an independent niche on the court should not be ignored.

On the other hand, there is no limit to what Justices Alito and Thomas will do.

In contrast to Barrett, no right-wing theory or activist invitation is too wacky for Alito and Thomas to entertain.

During oral argument on Danco Laboratories v. Alliance for Hippocratic Medicine (considering the Food and Drug Administration’s approval of mifepristone), Alito and Thomas took up the right-wing infatuation with the Comstock Act , passed in 1873. Alito, alone among the justices, seemed anxious to speed past the very real “standing” issue to ruminate about a means of banning abortion nationwide.

The Comstock law, which has not been enforced in about a century, bans sending “every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion .” (Also, certainly unconstitutionally, it bans a large category of vaguely defined pornography.) Thomas and Alito seem ready and willing to deploy the law in a way it has never been applied: namely, to states where abortion is otherwise legal, thereby threatening the availability of medical abortions nationwide.

The Post reported , “Some experts and Biden officials fear Alito and Thomas are planning to write a separate opinion focused solely on the Comstock Act, arguing that the law remains viable and providing legal cover to a future administration that seeks to invoke it.” Even if Alito and Thomas do not carry the day, the Hill reported , “access to abortion pills could still very much be at risk if Alito and Thomas succeed in soliciting a Comstock-focused challenge in the future,” abortion rights defenders fear. A future Republican administration might well start trying to employ the law to throw abortion providers in jail.

Fishing for a hook to extrapolate the Dobbs v. Jackson Women’s Health Organization ruling into a nationwide ban on medical abortions epitomizes these justices’ radical disregard for precedent and brazen judicial activism. Indeed, Alito and Thomas increasingly seem like stalking horses for the far-right agenda, be it on guns, abortion or voting.

The Supreme Court’s credibility

Numerous polls show the court’s approval has cratered , likely a function of its ethics scandals, partisan rhetoric and aggressive reversal of precedent. In other words, judicial imperialism and disdain for ethical rules that apply even to members of Congress are unpopular with voters.

Increasingly partisan Thomas and Alito no longer bother to conceal their contempt for ethical restrictions , congressional oversight or judicial temperament . They have repeatedly failed to disclose luxurious gifts (with no sign of remorse) and remain adamant that they will accept no outside oversight.

After a firestorm of protest over financial disclosure lapses, Chief Justice John G. Roberts Jr. released ethical guidelines so weak that they lack an enforcement mechanism. Worse, the guidelines are so porous that they posed no barrier to Thomas sitting on cases involving attempts to overturn the 2020 election that his wife supported.

Unless the rest of the court decides to restrain Thomas and Alito, concerns about ethical lapses and misalignment with contemporary American values will deepen, heightening demands for congressional responses (e.g., mandatory ethics, term limits, court expansion). If that happens, Alito and Thomas will be largely responsible.

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Reflecting on History, Preparing for the Future

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Dean Sophia Z. Lee discusses her scholarship in administrative law and shares her advice with law students and future scholars.

In an interview with The Regulatory Review , Sophia Z. Lee , Dean of the University of Pennsylvania Carey Law School , discusses common themes in her work as a legal scholar and historian of administrative law. Lee discusses the importance of analyzing legal developments in their historical contexts and the crucial intersection between administrative law and racial justice movements. Lee also offers insight and advice to budding scholars of regulation and her plans for the future of Penn Carey Law.

In addition to serving as dean of Penn Carey Law since 2023, Lee is the Bernard G. Segal Professor of Law and has a secondary appointment in the history department of the University of Pennsylvania. Lee has been a part of the law school community since joining as an assistant professor of law in 2009 and served as deputy dean from 2015 to 2017. In addition to her leadership at the law school, Lee has also served in leadership capacities within the Labor and Working Class History Association and the American Society for Legal History .

Prior to coming to the University of Pennsylvania, Lee was a Samuel I. Golieb Fellow at New York University School of Law and clerked for the Honorable Kimba M. Wood of the U.S. District Court for the Southern District of New York. Lee earned both her undergraduate and master’s degree at the University of California, Berkeley and pursued a career in social work before earning a J.D. and Ph.D. in history from Yale University.

The Regulatory Review is pleased to share the following interview with Dean Sophia Z. Lee.

The Regulatory Review : As a legal scholar, you have combined your background as a lawyer and a historian throughout your scholarship. Could you describe some of the main themes of your scholarship?

There are two themes that are most relevant for The Regulatory Review’s audience. The first is administrative constitutionalism. In the early 2000s, legal scholars were paying renewed attention to the role non-court actors play in making constitutional law. They had written about the roles the public, the president, and Congress played. My work expanded the inquiry to include the work of administrative agencies in the interpretation and implementation of the U.S. Constitution. Using history, I showed that agencies had been far more influential and innovative interpreters of the Constitution than assumed.

The other theme of my work has been demonstrating the important relationship between administrative law and racial justice movements. My scholarship has emphasized how including advocacy before administrative agencies changes our understanding of the civil rights movement. For instance, I’ve shown that civil rights advocates did not abandon economic justice issues in the 1950s, as was previously assumed, but instead migrated many of those claims from the courts to administrative agencies. My work has also highlighted the influence racial justice advocates have had on administrative law. As civil rights advocates pursued administrative strategies, they raised novel issues that helped shape the course of administrative law for all parties.

TRR : One of your areas of expertise lies in administrative law. How is history relevant to contemporary discussions in administrative law, whether in practice or in scholarship?

History has always been relevant to administrative law and is only more so today. History has long shed useful light on how current law came to be, helped us think about legal alternatives, and provided ideas for how to effectuate changes in the law. History has also traditionally played an important role in analyzing the structural constitutional issues that are core to administrative law and the architecture of the administrative state. History is only more essential today given the rise of originalism and more historically grounded approaches to interpretation not only of constitutional law, but also of the Administrative Procedure Act. These days, some of the hottest debates in administrative law involve historical questions.

TRR : For many years, you organized an essay contest for students in your Administrative Law class. The winners have had their essays published in The Regulatory Review . As an educator, what have you found valuable about The Review ?

The Regulatory Review is a great resource in the classroom. First, it’s an excellent source for accessible and timely reporting that can demonstrate the real-world stakes of the doctrine we’re learning. I would frequently share relevant articles in class. Those pieces also provided good models for students of how to write clearly and accessibly about regulation and administrative law, which is an evermore important professional skill. That’s why I’ve been so thankful to The Regulatory Review for partnering with me on my essay contests. Every semester, small groups of students studied a single regulation. Next, each student wrote a Regulatory Review -style essay about that regulation, which helped them develop their ability to write clearly about this challenging subject. That The Regulatory Review committed to publishing at least one of the student essays each year gave the contest some real-world stakes and, for at least one student, the reward of a publication. The contest also meant that my students finished their first year of law school very familiar with The Regulatory Review, and many of them were excited to join its ranks.

TRR : You have recently become the dean of Penn Carey Law. What are some of the opportunities that you see for the law school in the coming years?

There are many things I am excited about, but perhaps most relevant to readers of The Regulatory Review , I’m looking forward to continuing to strengthen opportunities for our students and graduates interested in regulatory law and policy.

TRR : What advice would you give law students today who are interested in careers involving administrative or regulatory law?

Take Administrative Law and our other regulatory law classes, join The Regulatory Review , and consider one of the many administrative law-related experiential opportunities the law school offers. Clerking can be excellent preparation for these careers as well. Also, seek opportunities to connect with our alumni working in this area. They have served at the highest levels in government, pursued fulfilling careers in agencies, and built important and influential private regulatory practices. They can be an excellent source of advice and inspiration. By that same measure, once you’ve established yourself, please remember to pay it forward to future Penn Carey Law students!

The Sunday Spotlight is a recurring feature of The Regulatory Review that periodically shares conversations with leaders and thinkers in the field of regulation and, in doing so, shines a light on important regulatory topics and ideas.

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The Supreme Court’s Self-Coronation

The U.S. Supreme Court’s current docket presents the Court with more opportunities to empower itself at the expense of other governmental institutions.

Lingering Questions About the Major Questions Doctrine

Scholars discuss the origins, scope, and merits of the U.S. Supreme Court’s “major questions doctrine.”

Essays in Honor of Justice Stephen G. Breyer

Introduction by Martha Minow

Cass R. Sunstein
John F. Manning
Mark Tushnet
Martha Minow
Michael J. Klarman
Richard H. Fallon
Todd D. Rakoff
Laurence H. Tribe
Glenn Cohen
Martha A. Field
Joseph William Singer
November 2014
See full issue

To honor Justice Stephen G. Breyer’s first twenty years of service on the United States Supreme Court, Harvard Law School planned a celebration and many individual faculty members wrote reflections on some of his opinions. Those reflections are assembled here along with our community’s deepest admiration and appreciation. As one of the small number of individuals in American history who have offered their service at the highest levels of all three branches of the United States government, Justice Breyer has devoted his professional life to advancing the public good. He does so with intellectual rigor, imagination, and wisdom, all in evidence in the cases discussed in the comments that follow.

One distinctive feature of his judicial opinions is the perspective afforded from his deep knowledge of how government works. As Special Assistant to the Assistant Attorney General in the Antitrust Division of the U.S. Department of Justice and Assistant Special Prosecutor on the Watergate Special Prosecution Force, 1973, he worked to enforce the law. As Special Counsel and then Chief Counsel for the U.S. Senate Judiciary Committee and Special Counsel for the Subcommittee on Administrative Practices, he pursued legislative factfinding, lawmaking, oversight, and advice and consent work. His service within the judiciary started when he worked as a law clerk to Justice Arthur J. Goldberg at the Supreme Court of the United States, and continued with his service on the U.S. Court of Appeals for the First Circuit, where he also served as Chief Judge, as a member of the Judicial Conference, and as a member of the U.S. Sentencing Commission at the time of its development of the Federal Sentencing Guidelines.

Harvard University has been lucky he decided to come East following college at Stanford University and West following his time as a Marshall Scholar at Oxford University. A distinguished student and editor of the Harvard Law Review , he returned as a law professor and professor at the Kennedy School of Government. A prolific and influential scholar, his powerful work on risk regulation, regulatory reform, energy regulation, making democracy work, and judicial interpretation reflects both his first-hand experiences in governing and deep commitments to rational decisionmaking, governmental deliberation, and citizen participation. His civic service on the boards of educational and health care institutions and his bicycling, his cooking, and his wide and constant reading help to explain the breadth of his knowledge, but his sense of humor is all his own.

It is with joy that we offer these reflections on some of his judicial work.

November 10, 2014

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John Marshall, Marbury v. Madison, and Judicial Review

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