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Supreme Court, United States

United States Supreme Court, highest court of the United States, established by Article 3 of the Constitution of the United States.

Scope and Jurisdiction

Section 1 of Article 3 of the Constitution provides for vesting the judicial power of the United States in one supreme court and in such inferior courts as Congress establishes. Section 2 defines the scope of U.S. judicial power and establishes the jurisdiction of the Supreme Court. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States; to cases concerning foreign diplomats and admiralty practice; and to diversity cases (those between citizens of different states) and cases in which the United States or a state is a party (however, the Eleventh Amendment, adopted in 1798, forbids federal cognizance of cases brought against a state by citizens of another state or by citizens of a foreign state).

The cases in which the Supreme Court has original jurisdiction—i.e., where another court need not first consider the controversy—are those in which diplomats or a state is a party; even here, it has been held, inferior courts may enjoy concomitant jurisdiction. In all other federal cases the Supreme Court exercises appellate jurisdiction, but subject to limitations and regulations made by Congress.

Procedures

The court's annual term begins in October. Five justices constitute a quorum to hear a case, and decision is rendered by majority vote. In the event of a tie, the previous judgment is affirmed. Under the Judiciary Law as amended in 1934, cases are usually brought to the court by appeal or by writ of certiorari. The appeal procedure is used when the highest state court has declared that a U.S. statute is unconstitutional or that a state statute does not violate the U.S. Constitution, laws, or treaties. If a lower federal court rules that a U.S. statute is unconstitutional, the government may prosecute an immediate appeal. Certiorari is granted at the court's discretion, with most applications refused. It may be used to review the constitutional decisions of state courts of last resort and federal decisions on any important matter, especially when the inferior courts are in disagreement.

Functions

The Supreme Court has two fundamental functions. On the one hand, it must interpret and expound all congressional enactments brought before it in proper cases; in this respect its role parallels that of the state courts of final resort in making the decisive interpretation of state law. On the other hand, the Supreme Court has power (superseding that of all other courts) to examine federal and state statutes and executive actions to determine whether they conform to the U.S. Constitution. When the court rules against the constitutionality of a statute or an executive action, its decision can be overcome only if the Constitution is amended or if the court later overrules itself or modifies its previous opinion. The decisions are not confined to the specific cases, but rather are intended to guide legislatures and executive authority; thereby they mold the development of law. Thus, in the U.S. governmental system the Supreme Court potentially wields the highest power.

The Supreme Court, however, has found many constitutional limitations on its powers, and has voluntarily adopted others so as not to interfere unduly with the other branches of government or with the states. Though there are some notable exceptions, the court has a standing policy of eschewing political disputes, i.e., issues that are considered to be policy matters of legislative or executive authorities. In 1962 the court, over protests that it was entering a "political thicket," ruled in Baker v. Carr that the legislatures of several states must correct imbalances in representation between rural and urban areas. The court rarely attempts to infringe upon the power of the President over foreign affairs. Self-imposed restraints, observed only intermittently, include consideration of a constitutional issue only if the case cannot be considered on other grounds, and the formulation of constitutional decisions in the narrowest terms.

Membership

Members of the court are appointed by the President with the advice and consent of the Senate. Like all federal judges, they retain their office indefinitely during "good behavior" (only in one instance—that of Justice Samuel Chase in 1805—were impeachment proceedings ever brought against a member of the Supreme Court).

The size of the Supreme Court is not prescribed by the Constitution; it is set by statute. The court began in 1789 with six members and was increased to seven in 1807, to nine in 1837, and to ten in 1863. In 1866 the membership was reduced to eight to prevent President Andrew Johnson from filling any vacancies. Since 1869, the court has comprised nine members.

By 2007 a total of 110 Justices, 108 men and 2 women, had sat on the bench. Five served both as associate justice and as chief justice; they were John Rutledge (appointed chief justice in 1795 but never confirmed by the Senate), Edward D. White (appointed to the court in 1894 and chief justice from 1910 to 1921), Charles Evans Hughes (an associate justice from 1910 to 1916, he served as chief justice from 1930 to 1941), Harlan F. Stone (appointed to the court in 1925 and chief justice from 1941 to 1946), and William H. Rehnquist (appointed associate justice in 1971 and chief justice from 1986 to 2005). See the table entitled Supreme Court Justices for a chronological list of all chief justices and associate justices.

History

Early Years

The history of the Supreme Court reflects the development of the U.S. economy, the alteration of political views, and the evolution of the federal structure. In its earliest years, the court had little business to transact. Much of the justices' time was consumed in appearing on the federal courts of appeal in the judicial circuits assigned to them. This obligation of circuit riding was later to interfere seriously with the performance of the court's more important business. For the most part the full bench—sitting first in New York City, then in Philadelphia, finally in Washington—was a court of last resort in admiralty cases and in cases arising out of diversity of citizenship. The court somewhat later decided (in 1842 in Swift v. Tyson) that in diversity suits it would follow not state law but a presumed federal common law.

The Court under Marshall

The status of the Supreme Court was somewhat uncertain until the tenure (1801–35) of John Marshall, the "Great Chief Justice." Marshall, a strong Federalist, in Marbury v. Madison established the principle of judicial review, i.e., the right of all courts to refuse the enforcement of unconstitutional enactments of Congress. The same power in regard to state laws was asserted in the opinion of Martin v. Hunter's Lessee (1816), delivered by Justice Joseph Story.

In other opinions, Marshall further strengthened the Federalist position as against those who espoused states' rights. This is seen notably in McCulloch v. Maryland (1819), which, by holding the creation of the second National Bank a legitimate power of Congress, gave judicial sanction to Alexander Hamilton's broad interpretation of the Constitution and extended the powers of the federal government over matters of decisive economic importance; and in Gibbons v. Ogden (1824), which confirmed the power of Congress to regulate commerce. Also of importance was Marshall's decision in the Dartmouth College Case (1819), which protected state-granted charters from impairment by state legislatures.

The Court under Taney

Under Marshall's successor, Roger B. Taney, the court recognized to some extent the claims of state regulatory authority through police power. However, in the Dred Scott Case, Taney made what many persons considered an unwarranted limitation of federal authority in forbidding Congress to prohibit slavery in the territories. So violent was the reaction of antislavery forces to the decision that in the North the prestige of the court declined greatly. The low point in the judiciary's estate came during the Civil War when Taney's challenge of President Lincoln's power to suspend habeas corpus was ignored by the President and denounced by the Northern press (see Merryman, ex parte).

From the Civil War to 1937

The end of the Civil War to 1937 encompasses the second great period in the history of the court. After the adoption (1868) of the Fourteenth Amendment, the character of litigation before the court was altered, and there were many cases alleging that state legislation took liberty or property without due process of law, or denied equal protection of the laws. In the late 19th cent., the flood of litigation arising from a wide variety of causes was delaying the disposition of cases up to three years. Relief was imperative, and finally, in 1891, Congress created the circuit courts of appeals to give a final hearing to most appeals and excused the justices from riding circuit (however, each justice still heads one or more circuits).

In the early 20th cent., the court appeared to be highly conservative in its views. It showed in general a rigid adherence to stare decisis (the rule that precedents are to be followed), a tendency to prevent the states from adopting laws that restricted business in its employment practices and other activities, and little disposition to restrain the states from restricting civil liberties, as in the Plessy v. Ferguson case (1896), which upheld the right of states to enforce segregationist Jim Crow legislation in many Southern states. In the Insular Cases (1901), arising out of questions concerning the status of peoples in the territories acquired as a result of the Spanish American War, the court asserted that the civil rights guaranteed by the Constitution did not automatically apply to the people of an annexed territory, i.e., the Constitution did not follow the flag.

In one notable case, Muller v. Oregon (1908), the court departed from its conservative stand to uphold a state law limiting the maximum working hours of women. The case was unique in that Louis D. Brandeis, counsel for the state, and later to become a distinguished member of the court, eschewed the traditional legal arguments and showed with overwhelming evidence from physicians, factory inspectors, and social workers that the number of hours women worked affected their health and morale. The modern concern with civil liberties began in the aftermath of World War I, as the court, led by Oliver Wendell Holmes and Brandeis, began to expand the constitutional protections to free speech.

The Roosevelt Years

A third great period of constitutional history began after President Franklin Delano Roosevelt came to office and Congress passed landmark economic legislation. Much of the economic legislation of the New Deal was attacked on various constitutional grounds, e.g., that the laws were unwarranted delegations of legislative power to the President and interfered with the exclusive power of the states over intrastate commerce. From 1935 to 1937, the court struck down such major pieces of New Deal legislation as the National Industrial Recovery Act (in the Schechter Poultry Case), the Agricultural Adjustment Act, and the Bituminous Coal Act. Some of the laws were condemned by five-to-four decisions.

Unalterably in the conservative camp were Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter. The liberals (and supporters for the most part of New Deal legislation) were Benjamin N. Cardozo, Brandeis, and Harlan F. Stone. In the center were Chief Justice Hughes and Owen J. Roberts. Roosevelt, who had not appointed a single justice, was determined to change the composition of the court and proposed (Feb., 1937) a measure designed to displace the "nine old men" and to infuse the bench with "new blood" of his choosing.

His plan—which even his opponents conceded was probably constitutional—was to provide retirement at full pay for all members of the court over 70; if a justice refused to retire, an "assistant" with full voting rights was to be appointed. In no case might there be more than 15 justices. The majority in Congress, which characterized the scheme as "packing the court," prevented it from ever coming up for a vote, and it was abandoned in July.

In April, however, Hughes and Roberts joined the liberal group, thus giving the New Deal a precarious majority of one. By five-to-four votes the National Labor Relations Act and the Social Security Act were upheld. The majority justified these and other decisions by pointing out that the scope of federal legislation had to expand because the growing interdependence of the country made local economic legislation of little value. The court also enunciated the novel view that in acting under the "general welfare" clause of Article 1, Section 8, of the Constitution, Congress was not limited to carrying out its express powers as listed in Article 1 but might pursue a wider range of objectives. Congress was thus given a vast new range of legislative power free of Supreme Court censure.

In 1938, the court took another revolutionary step in overruling Swift v. Tyson. The doctrine of a federal common law was repudiated, and in handling diversity suits the federal courts were directed to use state law. While in this case the Supreme Court limited the scope of federal activity, it took certain steps in the opposite direction. In the conflict of laws (juristic relations between states) it announced many new principles, and it forbade even limited state taxation of federal facilities but offered Congress fairly wide scope to tax various state-supported activities.

The court of the 1940s, with seven appointments by Roosevelt, was not more unified than its Depression-era predecessor. There was less public concern, however, since the court did not invalidate major legislation, while the diverse views of its members on technical subjects—antitrust and patent law, conflict of laws, taxation—mainly concerned lawyers and business. On the contrary, the percentage of dissents and of special opinions was greater than at any previous time. A notable blot on the court's record during World War II was its decision in Korematsu v. United States (1944), which upheld the constitutionality of wartime relocation and internment of Japanese-Americans.

The 1950s and 1960s: Civil Liberties and Criminal Procedure

In the 1950s, the court found itself more and more concerned with the constitutional rights of the individual. Freedom of speech and other civil liberty issues were repeatedly brought before the court during this period of concern over internal subversion. Similarly, Congressional interrogation practices, state sedition laws, and other questionable methods used by the authorities in uncovering Communists in and out of government came under severe scrutiny near the end of the decade. The court's willingness to hold the constitutional guarantees of free speech and due process as above the alleged needs of internal security brought strong criticism from conservative jurists and led to attempts in Congress to curb the court's jurisdiction.

By the late 1950s, a fairly clear division on civil liberties had been established within the court. One wing, often called the judicial pacifists, sided with Felix Frankfurter, who argued that legislation and inquiries concerning internal security should be given the benefit of doubt despite infringements of personal liberty. The judicial activist wing, led by Justices Hugo L. Black and William O. Douglas, felt that the freedoms guaranteed by the Bill of Rights are absolute and should be considered beyond the power of Congress or the executive to modify. However, in civil-rights litigation, the court closed ranks in 1954, under Chief Justice Earl Warren, to order the desegregation of Southern public schools by a unanimous vote (see integration; Brown v. Board of Education of Topeka, Kans.).

In the 1960s, the court expanded the protection given individuals accused of crimes, especially in the areas of search and seizures (Mapp v. Ohio), confessions (Miranda v. Arizona), and the right to an attorney (Gideon v. Wainwright). In 1967, President Lyndon B. Johnson appointed the first African American, Thurgood Marshall, to the court.

In his first term in office, President Richard M. Nixon was able to significantly affect the outlook of the court by appointing a chief justice, Warren Burger, and three associate justices, Harry Blackmun, Lewis Powell, and William Rehnquist. Byron White, appointed by John F. Kennedy, often voted with the four to cut back the scope of the Warren court on criminal and other holdings. Emphasizing property rights and freedom from government interference, the court held that a private club with a state liquor license could refuse to serve guests because of their race and that a private shopping center could selectively ban political pickets.

In other areas, however, the Burger court proved surprisingly liberal. The death penalty (see capital punishment) was declared unconstitutional in Furman v. Georgia (1972) on the grounds that it constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. This was later overturned in Gregg v. Georgia (1976). In Nixon v. United States (1974), a unanimous court, including three Nixon appointees, ordered President Nixon to produce tape recordings relevant to the Watergate affair, a decision that precipitated his resignation three weeks later.

The court's most controversial decision of the Burger years was the declaration of women's rights to abortion in Roe v. Wade (1973). Critics were opposed to both its results—invalidation of state statutes prohibiting abortion—and the grounds for the decision, which they believed had usurped the prerogatives of legislatures in voiding state laws and asserted an unenumerated right not laid out in the Constitution. This argument found favor in the 1980s, under the administrations of Presidents Ronald Reagan and George H. W. Bush, who were committed to overturning the 1973 decision, and had the opportunity to make five appointments to the court.

The Current Court

With the emergence of a working conservative majority, particularly under the leadership of William Rehnquist (1986–2005), many of the Warren and Burger court precedents in the areas of criminal procedure and civil liberties were scaled back. Though the court approved of restrictions on the right to abortion, it also, by a narrow majority, continued to uphold the underlying principle of Roe v. Wade. The continuing controversy over the abortion ruling and other civil liberties cases placed the court in the center of a national political debate, underscored by the bitter Senate hearings on the unsuccessful nomination of Robert Bork and the contention that surrounded the elevation of Clarence Thomas to the court. From the mid-1990s to the mid-2000s the other members of the court were John Paul Stevens, appointed by President Ford; Sandra Day O'Connor, the first female Justice, Antonin Scalia, and Anthony Kennedy, all Reagan appointees; David Souter, appointed by President George H. W. Bush (who also appointed Thomas); and Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees. At the beginning of the 21st cent., the court's center was far to the right of the center during the Warren and even the Burger years. On the other hand, Justices Souter, Ginsburg, and others were felt to have acted as a brake on conservative judicial activism. A significant subsequent set of decisions (2004, 2005) in which the justices found that only juries can make the findings of fact that affect a defendant's sentence was notable for the shifting alliances among the members that determined the outcome of the cases.

The Rehnquist court, despite its sometimes activist approach, also espoused the doctrines of judicial restraint, restrictions on federal power, and deference to the states. These positions appeared to be abandoned by the court in Dec., 2000, when, after Al Gore had sought and won a court-ordered recount from the Florida supreme court, the U.S. Supreme Court split 5–4 along ideological lines and ordered an end to the recount (because a single standard for conducting the recounts had not been established by the Florida court). Many observers felt that the court had tarnished its reputation with its decision, and some felt that it was a blatantly political ruling in favor of the Republican candidate, George W. Bush.

In 2005, with the retirement of Justice O'Connor and the death of Chief Justice Rehnquist, Bush appointed John G. Roberts, Jr., to succeed Rehnquist and Samuel A. Alito, Jr., to replace O'Connor. These appointments, especially that of Alito, who was confirmed in 2006, were generally regarded as increasing the conservatism of the Court, as shown by its upholding (2007) of a federal law banning the late-term abortion procedure abortion opponents have called "partial-birth" abortion and its decision (2007) that strongly limited the degree to which school districts could use race in order to avoid resegregation.

A notable ruling (2006) of the new Court determined that the president could not use military commissions that had not been authorized by Congress to try foreign terror suspects. The judgment appeared to undermine the Bush administration's long-standing but legally untested assertion that the president's constitutional powers to defend the United States were not subject to congressional legislation. The 5–3 decision overturned an appeals court ruling that had been decided in part by the new chief justice, who did not participate in the ruling. President Barack Obama appointed Sonia Sotomayor to the Court in 2009; regarded as a liberal, she succeeded Justice Souter and became the Court's first Hispanic-American member. In 2010 Elena Kagan was named to the Court, succeeding the retiring Justice Stevens. Subsequent notable and controversial decisions include the Court's narrow upholding, in large part, of the Affordable Care Act (known as Obamacare) in 2012, and two 5–4 decisions, written (2013, 2015) by Justice Kennedy, that extended constitutional recognition and protection to same-sex marriage.

Bibliography

Modern scholarly studies include A. F. Bartee, Cases Lost, Causes Won: The Supreme Court and the Judicial Process (1983); V. Blasi, The Burger Court (1983); J. Agresto, The Supreme Court and Constitutional Democracy (1984); D. P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985); G. J. Lankevich and H. B. Furer, ed., The Supreme Court in American Life (1986); D. M. O'Brien, Storm Center: The Supreme Court in American Politics (1986); A. Cox, The Court and the Constitution (1987); W. Rehnquist, The Supreme Court (1987); W. Lasser, The Limits of Judicial Power (1988); G. E. White, The American Judicial Tradition (rev. ed. 1988); J. F. Simon, The Center Holds: The Power Struggle inside the Rehnquist Court (1995) and F.D.R. and Chief Justice Hughes (2012); J. Toobin, The Nine (2007) and The Oath: The Obama White House and the Supreme Court (2012); B. Solomon, FDR v. The Constitution (2009); M. E. K. Hall, The Nature of Supreme Court Power (2010); J. Shesol, Supreme Power: Franklin Roosevelt v. the Supreme Court (2010); K. J. McMahon, Nixon's Court (2011); M. Tushnet, In the Balance: Law and Politics on the Roberts Court (2013); L. Tribe and J. Matz, Uncertain Justice: The Roberts Court and the Constitution (2014).

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Supreme Court

SUPREME COURT

SUPREME COURT. The Supreme Court is the final judicial authority in the U.S. system of government. Designated in Article III of the U.S. Constitution to have jurisdiction over all cases "arising under" the Constitution, the Court has the power to hear cases on appeal from the Federal appellate courts and the highest courts of each state. The Constitution also provides that the Court may act as a trial court in a limited number of cases: "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Though the Supreme Court is the final judicial authority in American government, it is not necessarily the final legal or political authority in the political system. While litigants may never appeal Supreme Court decisions to a superior court, disputes may proceed in other branches of government after a Supreme Court ruling. Congress and state legislatures may effectively alter or negate Supreme Court decisions involving statutory interpretation by amending or clarifying statutes, and may nullify constitutional decisions by amending the Constitution pursuant to Article V of the Constitution.

Several factors are important to understand the Court's role in American democracy, including: the continuing nature of the Court's relationship to Congress, the Executive Branch, and state governments; the influence of political and economic history on the Court; the intellectual underpinnings of Supreme Court decisions; and the internal dynamics of the Court as a distinct institution. Finally, the ambiguity of many key provisions of the Constitution is a source of both limits and power, for it creates the need for an authoritative voice on the Constitution's meaning and simultaneously makes such interpretations open to contestation. Created at the crossroads of law and politics, the Supreme Court's history is a history of controversy.

In addition to the possibility of legislative alteration of Supreme Court decisions, formal relationships the Constitution establishes between the Court and the other branches of the national government affects the Court's power. First, the President appoints each justice to the Court, subject to Senate confirmation. Second, Supreme Court justices, like all federal judges, serve for life, absent impeachment by the House of Representatives and removal by the Senate. Third, Congress controls the number of justices that serve on the Court at any given time. At various points in U.S. history, the Court has had as few as five justices and as many as ten. Since 1865, however, the number has held steady at nine, including one chief justice. Fourth, Congress controls the Court's operational budget, though actual compensation to the justices "shall not be diminished during [the Justices] Continuance in office." (Article III, Section 1). Fifth, the Constitution gives Congress power over much of the Court's appellate jurisdiction. These and other overlapping Constitutional functions of each branch of government have led scholars to proclaim that the three branches of government are "separate institutions, sharing powers."

Beyond constitutional overlap, the special institutional nature of the Supreme Court is important. For example, the Court lacks the power to decide cases unless the proper parties to a lawsuit bring the case to the Court. The Court also lacks the ability to implement its decisions of its own accord, having to rely upon the executive branch to carry out its will. As Alexander Hamilton wrote in Federalist 78, the Framers firmly expected that the Supreme Court, "no influence over either the sword or the purse," and would thus be "the least dangerous" branch of the three branches of government.

Marshall and the Establishment of Judicial Power

Though constrained, the Supreme Court has grown in stature and power since the time of the founding. This growth would have been nearly impossible without the deft political thinking and imaginative judicial mind of John Marshall, who served as Chief Justice from 1801–1835. The Constitution is unclear about the Court's power to declare acts of Congress unconstitutional and therefore void. Marshall resolved the matter in 1803, ruling in Marbiru v. Madison that the Court did indeed possess this power. The historical circumstances and reasoning of the case dramatically illustrate the complex nature of judicial power discussed above.

Marbury arose during the tense transfer of power from the Federalist administration of John Adams to the Democratic-Republican administration of Thomas Jefferson in the wake of the 1800 election. Just before leaving office, Adams appointed William Marbury as a justice of the peace in Washington, D.C.—one of several new judgeships created by the departing Federalist Congress trying to maintain a Federalist presence in government. After assuming office, however, Jefferson and his Secretary of State, James Madison, refused to deliver Marbury's commission to him. Seeking the judgeship, Marbury took his claim directly to the Supreme Court. Marshall confronted a conundrum: if he and the Court ordered Jefferson to give Marbury his commission, Jefferson would surely refuse to obey, making the still fledgling Court appear weak in the face of executive power. Worse, Congress could have impeached Marshall. If the Court declined to support Marbury, however, it would appear to be afraid of Jefferson. Writing for the Court, Marshall dodged having to order Jefferson to deliver the commission by holding that the Constitution did not give the Court the power to hear such cases except on appeal from a lower court. However, he went on to hold that the Judiciary Act of 1789 was unconstitutional because it gave the Court the power to hear the case in original jurisdiction. Thus, Marshall avoided a potentially crippling conflict with the President while simultaneously establishing a broad power that the Court could use in the future. It would be nearly fifty years before the Court declared another act of Congress unconstitutional in the infamous Dred Scott decision.

The issue of states' power in relation to the national government was the most important issue the Court confronted before the Civil War. The Marshall Court was instrumental in increasing the power of the national government over the states. In two controversial decisions, Fletcher v. Peck (1810) and Martin v. Hunter's Lessee (1816), the Court declared that the Constitution gave it the power to review the constitutionality of decisions of state supreme courts and the acts of state legislatures, respectively. And in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the Court interpreted the "necessary and proper" and commerce clauses of Article I to give Congress broad regulatory power over the economy. The Marshall Court was also committed to protecting vested economic interests through the contracts clause of Article I (see Dartmouth College v. Woodward, 1819). Under the leadership of Chief Justice Roger B. Taney (1836–1864), the Court was somewhat more deferential to the states, giving them more room to regulate commerce on their own and to impair the obligations of contracts for public policy reasons. (Cooley v. Board of Wardens, 1851; Charles River Bridge v. Warren Bridge, 1837).

As race and sectional divide came to the fore by mid-century, the Taney Court found itself at the center of the gathering storm. In 1857, the Court made an infamous decision that made Civil War inevitable. Dred Scott v. Sandford held that African Americans did not constitute "citizens" and that the first of Henry Clay's three Great Compromises—the Missouri Compromise—was unconstitutional. The Civil War also tested the power of the president of the United States to effectively manage the country. In the Prize Cases (1863) and Ex Parte Milligan (1866), respectively, the Court found that the president could unilaterally establish a shipping blockade and seize property from "non-enemies" during a time of insurrection, but that the president could not impose martial law upon the citizens and suspend the writ of habeas corpus.

The Era of Economic Rights and Limited Government

The North's victory in the Civil War had two major consequences: the end of slavery and the unleashing of corporate development in the United States—pitting the regulatory power of governments against the interests of business and the private sector. With some exceptions, the Court showed more concern for the rights of business than with the plight of African Americans. The Reconstruction Era following the Civil War allowed the Court to interpret the recently ratified Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In 1875, Congress passed a Civil Rights Act providing for full access to public accommodations, regardless of race. The Supreme Court, however, found that such legislation exceeded Congress' power, which only extended to "the subject of slavery and its incidences" (Civil Rights Cases, 1883). Beyond striking down legislation passed to integrate American society on the basis of race, the Court in this period also upheld legislation designed to segregate American society on the basis of race. In 1896, the Court denied a Fourteenth Amendment Equal Protection challenge to the State of Louisiana's statute mandating racial segregation on trains (Plessy v. Ferguson). Some modern-day commentators point to these Reconstruction Era Court decisions regarding race as the nadir of the intellectual rigor of the Court.

Lochner v. New York epitomizes another controversial area for constitutional scholars. In 1905, the Court invalidated a New York law that regulated the maximum hours for bakers, finding that the law violated the "right to contract." Critics have pointed out that there is no textual right to contract listed in the Constitution. The Court subsequently overturned Lochner, but the case poses a perennial constitutional problem: how can the Ninth Amendment and the idea of non-enumerated rights find legitimacy with an unelected judiciary? More simply, what nontextual rights are in the Constitution and how does anyone—including the Court—know what they are?

The Supreme Court has employed two different tacks in discovering non-enumerated rights in the Constitution. During the so-called "Lochner era," it used the due process clause of the Fourteenth Amendment. In Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), for example, the Court found respectively that state laws limiting the ability to teach children foreign languages and restricting the teaching of children in private schools violated due process guarantees, which encompass freedom "from bodily restraint, … to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship [a deity] according to the dictates of [one's] own conscience." All of these aspects of liberty are "essential to the orderly pursuit of happiness by free men" and as such are protected by the Constitution under a doctrine called substantive due process.

Whereas the Court used substantive due process to limit the reach of state regulatory power, it used a restrictive interpretation of the commerce clause to limit the regulatory power of Congress in the decades before the New Deal. These cases illuminate the interactive nature of the relationship between the branches of government discussed above. The Court ruled in Hammer v. Dagenhart (1918) and A.L.A. Schechter Poultry Corp. v. United States (1935) that Congress lacked the power to pass legislation regulating child labor, and to delegate the regulation of agriculture, coal mining, and textiles to the executive branch. Because the power of Congress was critical to the success of President Franklin Delano Roosevelt's New Deal programs, F.D.R. responded to these and other decisions with a radical proposal. The president proposed expanding the number of justices on the Court to fifteen in the hope of garnering a majority that would permit Congress to pass New Deal legislation. Though Congress did not enact the plan, two justices on the Court abruptly changed their views on the commerce clause in a series of momentous decisions, including National Labor Relations Board v. Jones& Laughlin Stell (1937, which permitted Congress to regulate private employment practices) and Steward Machine Co. v. Davis, (1937, which held that Congress may sometimes exact taxes that have the effect of regulations). These famous changes in voting patterns came to be known as the "Switch in Time that Saved Nine."

The Civil Rights/Civil Liberties Era

After the New Deal crisis was resolved and the nation emerged victorious from World War II, the Court embarked on an extraordinary expansion of civil liberties and civil rights, especially under the leadership of Chief Justice Earl Warren (1953–1968). No case was more important in this regard than Brown v. Board of Education (1954), in which the Court overruled Plessy and declared that racial segregation in public schools violates the Equal Protection clause. Though it took several years before federal courts and the executive branch began enforcing the principles of Brown in a meaningful way, the decision was the springboard for later decisions that extended equal protection rights to women, gays and lesbians, aliens, children born out of wedlock, and other minorities. In the later 1960s and 1970s, the Court authorized massive integration plans for school districts; these decisions were controversial because they embroiled the federal courts in overseeing complicated institutions, a job that critics claimed lay beyond courts' capacity.

Controversy also arose with the emergence of the second form of substantive due process, as discussed above. In Griswold v. Connecticut (1965), the Court struck down a law criminalizing the use of contraceptive devices on the basis of a "right to privacy" in the Constitution, which it discovered not in the due process clause, but rather in the emanations of the penumbras of the text of the First, Third, Fourth, Fifth, and Ninth Amendments. When it proceeded to render the controversial decision in Roe v. Wade (1973), that the right to privacy protects a woman's right to have an abortion, the Court placed the right to privacy back into the Fourteenth Amendment's due process clause. Recently, however, the Court has revived the "textual" discovery of rights in Saenz v. Roe (1999). The Court in Saenz found that one component of the non-enumerated right to travel is derived from the Privileges and Immunities Clause of the Fourteenth Amendment.

The Warren Court also accelerated the application of the Bill of Rights to the states. Originally, the Bill of Rights was intended to protect individuals only from the actions of the federal government (Barron v. Baltimore, 1833). Nevertheless, in 1925 the Court ruled that because freedom of speech is a fundamental liberty protected by the due process clause of the Fourteenth Amendment, it is enforceable against state and local governments as well (Gitlow v. New York). By the 1960s, the Court had "incorporated" other clauses of the First Amendment to apply to the states. The incorporation of the Fourth, Fifth, and Sixth Amendments coincided with the Warren Court's so-called "criminal rights revolution," which generated great controversy in the context of the increasing crime rates and cultural upheavals of the sixties. Though appointed by the Republican President Eisenhower, Warren presided over what has been characterized as the most liberal period during the Court's history. The Court's rulings in Mapp v. Ohio (1961, holding that evidence obtained in violation of the Fourth Amendment must be excluded from trial), Gideon v. Wainwright (1963, applying the Sixth Amendment's right to retain counsel for the indigent extends against the states) and Miranda v. Arizona (1966, requiring police to warn suspects of their rights in custodial interrogations) greatly expanded the rights of the criminally accused.

With Justice William Brennan leading the way, the Warren Court also dramatically liberalized the First Amendment law of free speech and press. Before the late 1950s, speech could generally be punished if it had a "tendency" to cause violence or social harm. Building on the famous dissenting free speech decisions of Justices Oliver Wendell Holmes and Louis Brandeis earlier in the century, the Warren Court provided substantially more freedom for such controversial expression as pornography, vibrant (even vicious) criticism of public officials, hate speech, and offensive speech. Concisely, modern speech doctrine protects expression unless it constitutes hardcore pornography ("obscenity"), libel, threats, or speech that is likely to trigger imminent violence. (See, for example, New York Times v. Sullivan, 1964; Brandenburg v. Ohio, 1969.)

Recent Trends: Consolidation, and the New Substantive Due Process and Federalism

After Warren left the Court, President Nixon—who had campaigned against the liberalism of the Warren era—nominated the more conservative Warren Burger in the hope of ending the reign of judicial liberalism. But under Chief Justices Burger (1969–1986) and William Rehnquist (1986 to the present), the Court has generally consolidated the liberties of the Warren Era rather than radically reversing course. Though the Court has cut back some Fourth and Fifth Amendment rights, limited the reach of affirmative action (Adarand Constructors, Inc. v. Pena, 1995) and limited the scope of desegregation of the schools and the equal protection clause (see, for example, Freeman v. Pitts, 1992; Washington v. Davis, 1976), it has also maintained the fundamental right to an abortion (Planned Parenthood of Southeastern Pennsylvania v. Casey 1992), expanded the protection of free speech (R.A.V. v. St. Paul, 1992), and reaffirmed the Miranda decision (Dickerson v. United States, 2000).

The Burger Court retreated from its effort to reinforce the states' rights provisions of the Tenth Amendment, but the Rehnquist Court has revived the doctrine of federalism under the aegis of the commerce clause. From the time of the New Deal until near the end of the twentieth century, the Court had regularly accorded an ever-increasing amount of power to Congress. The Supreme Court has upheld Congressional power under the Commerce Clause to regulate such things as wheat production for home usage and public accommodations on the basis of race. (Wickard v. Filburn, 1942; Heart of Atlanta Motel, 1964). Since 1995, however, a seismic shift has occurred in the Court's jurisprudence regarding Congressional power. The Court began what is called "the new federalism" by curtailing Congress' power to prohibit the possession of weapons near schools. (United States v. Lopez, 1995). In Printz v. United States (1997), it ruled that Congress may not force state executive officers to enforce federal gun control legislation. In United States v. Morrison (2000), the Court struck down a federal law that provided civil remedies for victims of gender motivated attacks. And in Board of Trustees v. Garrett (2001), the Court concluded that Congress did not have the authority to hold states liable for violations of the Americans with Disabilities Act.

This change in the Supreme Court jurisprudence was not entirely unforeseeable. With seven of the Justices on the Court being appointed by Republican presidents, the more curious issue is why the group of the five most conservative justices waited so long to construct the new federalism. The five justices that formed the majority in each of the cases mentioned above (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor) had all served together since 1991, yet the lodestar of the Court's more conservative decisions and the number of times in which the conservative block voted together did not begin in earnest until 1995.

These same five justices also became crucial in Bush v. Gore (2000), the case that resolved the 2000 presidential election and is already one of the most controversial cases in the Court's history. The Court issued a stay, 5–4, mandating that the State of Florida stop counting Presidential ballots on December 9, 2000. The five justices, along with Justices Souter and Breyer in part, ruled in the per curiam opinion that such counting absent uniform statewide standards violated the Equal Protection Clause of the Fourteenth Amendment and that all counting efforts had to have been completed by December 12, 2000—the same day the Court issued the opinion and three days after the Court halted the counting of the ballots.

BIBLIOGRAPHY

Ackerman, Bruce. We the People, Volume I: Foundations. Cambridge, Mass.: Harvard University Press, 1991.

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1998.

Bell, Derrick A. And We Are Not Saved: The Elusive Quest For Racial Justice. New York: Basic Books, 1989.

Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. 2nd ed. New Haven, Conn.: Yale University Press, 1986.

Clayton, Cornell W., and Howard Gillman, eds. Supreme Court Decision making: New Institutionalist Approaches. Chicago: University of Chicago Press, 1999.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Griffin, Stephen M. American Constitutionalism: From Theory to Practice. Princeton, N.J.: Princeton University Press, 1999.

Horwitz, Morton J. The Transformation of American Law, 1780–1860: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

McClosky, Robert G. The American Supreme Court. 3d ed. Chicago: University of Chicago Press, 2000.

Neustadt, Richard E. Presidential Power: The Politics of Leadership. New York: Wiley, 1960.

O'Brien, David M. Storm Center: The Supreme Court in American Politics. New York: Norton, 2000.

Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1991.

Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional Law." Harvard Law Review 7(1893): 129.

Donald A.Downs

Martin J.Sweet

See alsoConstitution of the United States ; Judicial Review ; Judiciary ; Separation of Powers andvol. 9:Women in Industry (Brandeis Brief) .

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Supreme Court, U.S.

Supreme Court, U.S.

COMPOSITION AND FUNCTION OF THE COURT

JUDICIAL REVIEW AND U.S. POLICY

THE SUPREME COURT AND CONSTITUTIONAL DIALOGUE

BIBLIOGRAPHY

Article III of the U.S. Constitution states that [t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. While the Constitution establishes a Supreme Court, it does little to describe what the Court will look like or what it will do. Nevertheless, the Supreme Court has developed over time to become a key player in the U.S. policy process.

COMPOSITION AND FUNCTION OF THE COURT

With respect to composition, the Constitution provides that the justices of the U.S. Supreme Court will be appointed by the president, with the advice and consent of the Senate, and absent some malfeasance in office (which might result in their impeachment), they enjoy life tenure. As a result, appointing Supreme Court justices provides presidents with an opportunity to leave an enduring policy legacy; William Rehnquist was appointed by Republican president Richard Nixon in 1972, yet he remained a strong conservative force on the Court until his death in 2005.

The number of members of the Supreme Court is determined by statute rather than spelled out in the Constitution. During the first century of the Courts history, the number of justices varied from five to ten. In 1869, the number was set at nine, and it has held constant ever since.

Of the nine members, eight are associate justices and one serves as the chief justice. The position of chief justice must be filled specifically by the president. Thus, when Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated William Rehnquistwho was already serving as an associate justiceto the position of chief justice; although the Senate had confirmed Rehnquist as an associate justice in 1972, they had to confirm him as chief justice again in 1986.

People sometimes refer to the chief justice as first among equals. The chief justices vote does not count more than that of any other justice. However, regardless of his actual time served on the Court, he automatically has more seniority than any associate justice. As a result, he speaks first at conferencesmeetings to discuss the merits of casesand, if the chief justice is in the majority, he determines who will write the Courts opinion. The position of chief justice also entails some additional administrative and ceremonial responsibilities.

With respect to function, the Constitution provides that the Supreme Court has original jurisdictionthe ability to hear the case first, before any other courtover disputes between states, disputes between states and the federal government, and cases involving foreign diplomats. In all other cases, the Supreme Court exercises appellate jurisdiction; that is, it can only review the decision of another court. Because fact-finding is generally relegated to trial courtscourts with original jurisdic-tionthe Supreme Court is generally limited to resolving disputes over the meaning and application of the law.

Among the cases over which the Supreme Court exercises appellate jurisdiction, the overwhelming majority are brought to the Court through a petition for a writ of cer-tiorari. The Court has complete discretion over whether to grant the petition and hear the case or not. Indeed, the Supreme Court grants relatively few of the petitions filed with it. During the Courts 2002 term, 8,225 cases (including appeals, original jurisdiction cases, and extraordinary writs) were brought before the Supreme Court, yet the Court granted full review to fewer than 100.

A significant body of scholarship is devoted to determining how and why the Court chooses which cases it will hear. Empirical evidence suggests that the Court chooses to hear cases that give it the greatest opportunity to make policy: cases that present significant legal issues that will have broad impact on the legal landscape and, in particular, cases the court below decided wrongly. In other words, as long as the state and lower federal courts are deciding legal issues in a way that is consistent with the policy and legal preferences of the Supreme Court justices, the justices will generally let those lower court decisions stand. The Court is far more likely to accept a case to correct a perceived error on the part of the lower courts.

JUDICIAL REVIEW AND U.S. POLICY

While determining who wins and who loses legal disputes is arguably an inherently political activity, the U.S. Supreme Court plays its most active role in the American political process when it exercises judicial review. Judicial review is the power to evaluate whether state and federal government actions, both legislative and executive, comport with the Constitution and, if they do not, declare those actions void.

The U.S. Supreme Court first exercised judicial review in the 1803 case of Marbury v. Madison. In February 1801, outgoing president John Adams signed a number of judicial commissions, but his secretary of state, John Marshall, did not deliver them before the end of Adamss term. When the new president, Thomas Jefferson, took office, his secretary of state, James Madison, refused to deliver the commissions. William Marbury, one of the individuals who did not receive his commission, brought a claim directly to the U.S. Supreme Court. Interestingly, by this point, John Marshall had taken office as the chief justice of the Supreme Court.

Marbury brought his claim directly to the Supreme Court because a provision of the Judiciary Act of 1789 gave the Supreme Court the power of original jurisdiction over such matters. When the Supreme Court finally issued its decision in 1803, Chief Justice John Marshall concluded that the Court could not compel the president to deliver the commission to Marbury because Congress could not expand the Supreme Courts original jurisdiction beyond that described in the Constitution. The Court was unable to help Marbury, but it achieved its result by declaring an act of Congress unconstitutional and void.

The Marbury decision was relatively uncontroversial when it was issued. Chief Justice Marshall made it clear that the Courts role in exercising judicial review was limited to making legal, rather than political, determinations. In its earliest incarnation, judicial review was considered an almost ministerial function that gave the Court relatively little policymaking prerogative. As time passed, however, the potential for policymaking through the exercise of judicial review became clear.

In the late 1920s and early 1930s, the full power of judicial review was revealed. Specifically, as Congress began to pass social legislation in response to the Progressive movement and as President Franklin Roosevelt began to implement his New Deal economic policies, the Supreme Court stood squarely in the way of elected-branch policymaking. The Court issued a number of decisions striking down social and economic legislation on the grounds that it violated constitutional notions of federalism and individual liberty.

In 1937, following a string of Supreme Court decisions striking down New Deal programs, Roosevelt proposed a plan to pack the Court: On the pretext of assisting an overworked and elderly Supreme Court, Roosevelt proposed creating a new seat on the Supreme Court for every justice who was seventy years old or older and who remained on the Court. The result would have been to add six new seats, and those seats would, of course, be filled by judges friendly to Roosevelts New Deal programs.

Within weeks of Roosevelts proposal, Justice Owens Roberts abandoned the Courts anti-New Deal faction to create a narrow majority that supported the constitutionality of Roosevelts programs. Robertss apparent about-face is often referred to as the switch in time that saved nine because his change in position helped preserve the nine-member Supreme Court. Historical examination of the Courts deliberations from this time period indicate that Roberts had cast his pro-New Deal votes on the cases in question weeks before Roosevelt announced his plan; in other words, the coincidence between the threat to pack the Court and Robertss change of position was just thata coincidence.

Still, the Courts ability to stall implementation of significant social and economic programs highlights the potential of judicial review as a political force. Moreover, the shift in Supreme Court policy during the 1930s emphasizes the amount of discretion that the Court has in interpreting the Constitution. Although Chief Justice Marshall described judicial review as a mechanical application of clear legal principles, the events surrounding the New Deal demonstrate the extent to which the Constitution is subject to a wide range of interpretation. Indeed, since the 1930s, there has been an increasing awareness of the political implications of Supreme Court membership, and the nomination and confirmation process has become quite politically charged.

Any lingering doubt about the political dimension of the Courts exercise of judicial review was dispelled during the tenure of Chief Justice Earl Warren. Warren was appointed by a conservative presidentDwight Eisenhowerbut his time on the Court was marked by a clear liberal agenda. Warren was particularly interested in expanding the rights of criminal defendants, and his time on the Court is marked by numerous decisions that broadly construe the individual rights the Constitution guarantees to criminal defendants.

Among the cases that make up Chief Justice Warrens legacy are Miranda v. Arizona (1966) and Gideon v. Wainwright (1963). In Miranda, the Supreme Court held that the Fifth Amendment protection against self-incrimination requires police to inform any criminal suspect in their custody of their constitutional rights; specifically, Miranda requires the police to inform suspects in custody that they have the right to remain silent and decline to answer any questions. The Miranda decision is particularly striking because it delves into the nuts and bolts of police procedure, setting fairly bright line requirements for the policy to follow.

In Gideon v. Wainwright (1963), the Supreme Court ruled that the Sixth Amendment guarantee of effective assistance of counsel requires states to provide attorneys to indigent criminal defendants. In other words, the state must pay attorneys to represent criminal defendants who are too poor to hire attorneys on their own. Implementation of the Gideon decision has imposed considerable financial burdens on the states.

Both the Gideon and Miranda decisions reflect Chief Justice Warrens personal ideological agenda. First, both decisions give higher priority to the rights of the individual than to the rights of the state; procedural and financial burdens placed on government take second chair to the rights guaranteed individuals by the Constitution. Second, both decisions reflect Warrens belief that the U.S. Supreme Court plays a countermajoritarian role in U.S. politics. While the legislative and executive branches respond to the will of the majority, Warren (and many others) viewed the courts as providing a voice and a forum to those who are socially marginalized, such as the poor.

THE SUPREME COURT AND CONSTITUTIONAL DIALOGUE

Two politically charged issuesrace and abortionhighlight both the political aspect of judicial review and the role of the Supreme Court in a broader political dialogue. In both issue areas, the Supreme Court has played a key role in setting U.S. policy. Yet in both issues, the constraints placed on the Court and the dialogue between the Court and other political actors is apparent.

In 1857, the Supreme Court issued a decision in the case of Scott v. Sandford (better known as the Dred Scott decision). Legally, Dred Scott was a significant statement about the importance of states rights. Politically, however, Dred Scott was important because the Court held, essentially, that even emancipated slaves could not be full citizens of the United States. In an already tumultuous political climate, the Dred Scott decision became a rallying point for abolitionists and contributed to the outbreak of the U.S. Civil War and, ultimately, to the enactment of the Fourteenth Amendments guarantee of equal protection of the laws.

In Plessy v. Ferguson (1896), the Court considered a Louisiana statute that required separation of the races on all railroads. In finding that the Louisiana statute did not violate the Fourteenth Amendment, the Court explicitly rejected Plessys argument that segregation marginalized African Americans and perpetuated the belief that African Americans were inferior. Yet in Brown v. Board of Education of Topeka (1954), the Court outlawed segregated schools precisely because of the social stigma associated with segregation. What changed? The political climate had changed dramatically; between 1896 and 1954, African Americans had gained considerable electoral strength. Moreover, the composition of the Court had changed. Specifically, the Brown decision was vetted by a newly appointed Chief Justice Earl Warren.

The change in jurisprudence between Plessy and Brown illustrates both the importance of the ideology of individual members of the Court and the importance of a favorable political climate for the Courts exercise of power. The Courts decision in Brown could be implemented only with the support of the president, who mobilized the National Guard to force southern states to integrate their public schools.

The issue of race provides further illustration of the interplay between the Court and the elected branches. The Supreme Court has struggled to articulate a clear, concise position on the issue of affirmative action, leaving states to formulate their policies through a process of trial and error. In 1978, the Court first addressed the issue of affirmative action in higher education with the case of Regents of the University of California v. Bakke. In Bakke, the Court indicated that some affirmative action programs might be constitutionally acceptable, but the University of California program was not. Over the next twenty-five years, public universities across the country attempted to develop constitutionally acceptable yet effective affirmative action policies, but the Court failed to provide clear guidance. In 2003, the Court issued two decisions on the issue of affirmative action, and universities hoped that the issue would finally be resolved. In Gratz v. Bollinger, the Court struck down the University of Michigans affirmative action program for undergraduate admissions; in Grutter v. Bollinger, the Court upheld the affirmative action program for the University of Michigans law school. Taken together, the two decisions indicate that diversity in education is a compelling government interest, that public schools can consider racial diversity in admissions decisions, but that race cannot be given any precise, explicit weight in the decision process. The decisions provide guidance, but they are far from defining exactly when and how public universities may consider race in admissions.

While the issue of race illustrates the interplay and interdependence of the courts and elected government over the course of more than a century, the issue of abortion provides a more succinct yet equally compelling illustration. In 1973, following the relaxation of numerous state anti-abortion laws, the Supreme Court issued its landmark decision in Roe v. Wade. In Roe, the Court held that the right to privacywhich is not enumerated in the Constitution but which the Court had previously inferred from a number of constitutional provisionsprotected the right of a woman to obtain an abortion. In a remarkably legislative opinion, the Court expounded that a womans right to privacy completely dominated the states interests during the first trimester of pregnancy but the two obtained more equal footing as the pregnancy progressed.

The Roe decision ignited a firestorm of controversy. It mobilized anti-abortion activists and helped solidify a full-fledged anti-abortion movement in American politics. It prompted conservative state governments to enact increasingly restrictive anti-abortion legislation in an effort to test the boundaries of Roe and lead to the Court overturning its decision. It made the issue of abortion and the right to privacy a sort of litmus test in judicial nominations and confirmations. In the wake of Roe, the effect of the Court on politics and that of politics on the Court are stark.

SEE ALSO Brown v. Board of Education, 1954; Brown v. Board of Education, 1955; Constitution, U.S.; Dred Scott v. Sanford; Eisenhower, Dwight D.; Great Depression; Grutter Decision; Hernandez v. Texas; Jefferson, Thomas; Judicial Review; Judiciary; Law; Madison, James; Marshall, Thurgood; New Deal, The; Public Policy; Roe v. Wade; Roosevelt, Franklin D.; Separation of Powers; Warren, Earl

BIBLIOGRAPHY

Baum, Lawrence. 2004. The Supreme Court. 8th ed. Washington, DC: CQ Press.

Devins, Neal. 1992. Judicial Matters. California Law Review 80: 10271069.

Lazarus, Edward. 2005. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Rev. ed. New York: Penguin.

Nelson, William Edward. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University of Kansas Press.

OBrien, David. 2005. Storm Center: The Supreme Court in American Politics. 7th ed. New York: Norton.

Rosenberg, Gerald. 1993. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.

Wendy L. Watson

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U.S. Supreme Court (Rulings on Forensic Evidence)

U.S. Supreme Court (Rulings on Forensic Evidence)

Throughout the twentieth century, the court system wrestled with the issue of whether the testimony of forensic experts was a valid form of evidence . The essential problem was that modern science moves at a brisker pace than the judicial system. As new scientific techniques with applicability to forensics emerged, the courts often had no precedents on which to accept or reject them. Today, for example, the validity of fingerprint identification, with its axiom that the fingerprints of no two persons are alike, is largely taken for granted. But a century ago the courts were not so sure, for there was little research to buttress such a claim. At the opposite end of the twentieth century came DNA evidence, with statistical claims about the uniqueness of a person's genetic markers left behind at crime scenes in the form of blood, semen, skin cells, or hair. While justice plods, science sprints, often leaving the court system struggling to catch up as it tries to answer fundamental questions about the validity of scientific testimony and how to distinguish the claims of science from those of pseudoscience.

The United States Supreme Court has decided very few cases that directly bear on the admissibility of forensic testimony. Rather than addressing the issue of the validity of any particular branch of forensic science , the Court has limited itself to establishing ground rules for forensic testimony. Currently, it does so through the Federal Rules of Evidence , a set of broad principles used in federal trials. Most state courts have adopted these rules as well. The Federal Rules govern a number of issues pertaining to the relevance of evidence, but the key rule for forensic scientists is Rule 702, "Testimony by Experts," which applies to the testimony of any forensic scientist called to the witness stand: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

The Court entered the arena of forensic science in a 1923 case, Frye v. United States. Frye had been convicted of second-degree murder . His lawyer wanted to offer the testimony of a scientist who had conducted a systolic blood pressure deception test, today called a lie-detector or polygraph test, to demonstrate that his client was telling the truth. The trial court refused to admit the testimony, and the defendant appealed. In a remarkably brief and pointed decision, the Supreme Court affirmed the ruling of the lower court, famously stating: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable states is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." In the Court's view, the systolic blood pressure deception test had "not yet gained such standing and scientific recognition."

Thus was born the so-called Frye standard, used in the years that followed by various lower courts to rule on the admissibility of such forensic tools as voiceprints, neutron activation, gunshot residue tests, bite mark comparisons, and blood grouping tests. The fundamental principle was "general acceptance in the particular field," making the scientific community itself the arbiter of whether a technique or procedure passed scientific muster. In a key case affirming the Frye standard in 1974, a U.S. Court of Appeals wrote in United States v. Addison that the standard "assures that those most qualified to assess the general validity of a scientific method will have the determinative voice." Thus, the Frye standard remained a well-settled principle for 70 years.

By the 1990s, though, the Frye standard was coming under pressure, largely because in 1975 the Federal Rules of Evidence were enacted, and nowhere did they mention the "general acceptance" test of Frye. The rules seemingly cleared the way for admitting scientific testimony based on new knowledge that had not necessarily gained general acceptance in the scientific community. Uncertainty over the question of whether the Federal Rules superceded the Frye standard had come to a head in 1993 when the Supreme Court heard the case of Daubert v. Merrell Dow Pharmaceuticals.

The case involved two children with serious birth defects. Daubert contended that the defects were caused by a Merrell Dow drug the mother had taken during pregnancy. He wanted to offer the scientific testimony of eight experts who had conducted animal studies and chemical structure analyses on the drug and concluded that it could cause birth defects. The company responded with published scientific epidemiological studies showing that the drug was not a risk factor for birth defects. The trial court, citing Frye, agreed with the company and ruled that the methods employed by the plaintiff's experts did not meet the standard of "general acceptance" under Frye. The Court of Appeals affirmed the trial court's ruling, but the U.S. Supreme Court reversed the Court of Appeals.

In its opinion, the Court undertook a detailed examination of whether the Federal Rules of Evidence superceded Frye. It concluded that Frye's 'general acceptance' is not a necessary precondition to the admissibility of scientific evidence" and that the Federal Rules "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." To guide the trial judge, the Court offered a flexible four-pronged test based on whether the theory or technique has been "tested"; whether it has been subjected to "peer review," usually through a peer-reviewed publication, so that the scientific community can detect flaws; what its "known or potential rate of error" is; and its "acceptability" in the relevant scientific community. Accordingly, the more stringent Daubert (pronounced "Dough-BEAR") standard replaced the earlier Frye standard. Judges, not the scientific community, were to determine reliability and relevance.

The Daubert standard came into play in a 1997 case, General Electric Co. et al. v. Joiner. After he was diagnosed with lung cancer, Joiner sued General Electric and Monsanto. He proffered expert testimony that the cancer was caused by his exposure to workplace chemicals the companies manufactured. The trial court ruled in favor of the companies' motion to exclude the testimony, saying that the testimony did not rise above "subjective belief or unsupported speculation." The Court of Appeals reversed the trial court, but the Supreme Court concluded that the trial court had acted appropriately under Daubert and that in failing to defer to the trial court's judgment that there was "too great an analytical gap between the data and the opinion" in the animal studies on which Joiner's expert testimony was based; the Court of Appeals had overstepped its boundaries. In other words, the trial court judge had exercised his proper role under the Daubert standard by acting as a "gatekeeper" for expert scientific testimony.

It remained for the Court to determine whether the Daubert standard applied just to "scientific" testimony or to any other type of technical, skill-based, or experience-based knowledge on which expert testimony is based. It did so in Kumho Tire Co., Ltd., et al. v. Carmichael et al. in 1999. Carmichael was driving a vehicle on which a tire blew out. When the vehicle overturned, one passenger died and others were injured. Carmichael sued the tire manufacturer, offering the testimony of a tire failure analyst who concluded that the tire blew out because of a manufacturing defect. Kumho moved to have the testimony excluded on the grounds that the expert's methodology failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. The trial court granted the motion, ruling that the expert's testimony failed the four-pronged test outlined in Daubert. In reversing the trial court, the Court of Appeals ruled that the Daubert standard applied only to scientific testimony. While the Supreme Court reversed the Court of Appeals, agreeing with the trial court that the tire expert's procedures failed the Daubert standard, the Court explicitly stated that "The Daubert factors may apply to the testimony of engineers and other experts who are not scientists" and that "The Daubert 'gatekeeping' obligation applies not only to 'scientific' testimony, but to all expert testimony. Rule 702 does not distinguish between 'scientific' knowledge and 'technical' or 'other specialized' knowledge, but makes clear that any such knowledge might become the subject of expert testimony."

Since 1993, the Daubert standard, as fortified by Kumho Tire, has raised the question of whether any form of widely accepted forensic testimony can be challenged. In January 2002, for example, influential Philadelphia judge Louis H. Pollock caused consternation in the law enforcement community when he ruled that fingerprint analysis failed the Daubert standard, though in March 2002, he reversed himself. The likelihood remains that further Daubert challenges to forensic science will be mounted.

see also Expert witnesses; Federal Rules of Evidence; Frye standard.

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Supreme Court of the United States

SUPREME COURT OF THE UNITED STATES

The Supreme Court of the United States is the highest federal court. Although it was explicitly recognized in Article III of the Constitution, it was not formally established until passage of the judiciary act of 1789 (1 Stat. 73) and was not organized until 1790. Though its size and jurisdiction have changed over time, the Supreme Court has fulfilled its two main functions: acting as the final interpreter of state and federal law and establishing procedural rules for the federal courts.

Composition

The Supreme Court, sometimes called the High Court, is comprised of a chief justice and eight associate justices. Article III provides that the justices of the Court are to be appointed by the president of the United States with the advice and consent of the Senate. Once appointed, a justice may not be removed from office except by congressional impeachment. Because of this provision, many justices have remained on the bench into their eighties.

In 1789 the Court initially consisted of six members, but membership was increased to seven in 1807. In 1837 an eighth and ninth justice were added, and in 1863 the number rose to ten. Congress lowered the number to eight to prevent President andrew johnson from appointing anyone, and since 1869 the Court has consisted of nine justices.

The only modern attempt to alter the size of the Court occurred in 1937, when President franklin d. roosevelt attempted to "pack" the Court by trying to add justices more sympathetic to his political ideals. Between 1935 and 1937, the Supreme Court struck down as unconstitutional numerous pieces of Roosevelt's new deal program that attempted to regulate the national economy. Most of the conservative judges who voted against the New Deal statutes were over the age of 70. Roosevelt proposed that justices be allowed to retire at age 70 with full pay. Any judge who declined this offer would be forced to have an assistant with full voting rights. This plan was met with hostility by Democrats and Republicans and ultimately rejected as an act of political interference.

When the office of chief justice is vacant, the president may choose the new chief justice from among the associate justices but does not need to do so. Whenever the chief justice is unable to perform his or her duties or the office is vacant, the associate justice who has been on the Court the longest performs the duties. The Court can take official action with as few as six members joining in deliberation. However, extremely important cases will sometimes be postponed until all nine justices can participate.

Court Term

The Court sits in Washington, D.C., and begins its term on the first Monday in October of each year. It may also hold adjourned terms or special terms whenever required. These special calendars are reserved for emergency matters that usually occur when the Court is in recess between July and October. Between October and June 30 of the following year, the Court hears oral arguments for each case in its courtroom, confers and votes on the case, and then assigns a justice to write the majority opinion. An opinion must be released on every case by the end of the Court's term. However, if the Court cannot agree on how to resolve a case, it may hold the case over until the next term and schedule further oral arguments.

Administration of the Court

The law provides for the appointment of a clerk of the Supreme Court, a deputy clerk, a marshal, a court reporter, a librarian, judicial law clerks, secretaries to the justices, and an administrative assistant to help with court management. The law provides for the printing of Supreme Court decisions to ensure that they will be available to the public. The Court also disseminates its opinions electronically through its website. In addition, it posts its court calendar, docket, and orders on its website.

Jurisdiction

The Judiciary Act of 1789 gave the Supreme Court authority to hear certain appeals brought from the lower federal courts and the state courts. The Court was also given power to issue various kinds of orders, or writs, to enforce its decisions.

Article III of the Constitution declares that the Supreme Court shall have original jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party…" Original juris diction is the authority to hear a case from the outset. Nevertheless, Congress has enacted legislation giving the district courts concurrent jurisdiction in cases dealing with ambassadors and foreign consul as well as in cases between the U.S. government and one or more state governments. The Supreme Court retains exclusive jurisdiction only in suits between state governments, which often involve boundary disputes. These cases arise infrequently and are usually placed before special masters who hear the evidence, make findings, and recommend a decision that is acceptable to the Court.

Article III states that the Supreme Court's appellate jurisdiction extends to all federal cases "with such Exceptions, and under such Regulations as the Congress shall make." Appellate cases coming to the Court from the lower federal courts usually come from the 13 courts of appeals, although they may come from the Court of Military Appeals or, under special circumstances, directly from the district courts. Appellate cases may also come from the state courts of last resort, usually a state's supreme court.

Until 1891 losing parties in the lower federal courts and state courts of last resort had the right to appeal their cases to the Supreme Court. The Court's docket was crowded with appeals, many of which raised routine or frivolous claims. In 1891 Congress created nine courts of appeals to correct errors in routine cases. (28

U.S.C.A. ch. 3). This reduced the Supreme Court's caseload, but parties often retained statutory rights to have their cases reviewed by the Court.

In 1925 Congress reformed, at the Court's insistence, the Supreme Court's appellate jurisdiction by restricting the categories of cases in which litigants were afforded an appeal by right to the Supreme Court. In addition, the judiciary act of 1925, 43 Stat. 936, gave the Court the power to issue writs of certiorari to review all cases, federal or state, posing "federal questions of substance." The writ of certiorari gives the Court discretionary review, allowing it to address some issues and ignore others. Because of these reforms, the courts of appeals are the final decision-making courts in 98 percent of federal cases.

In 1988 Congress passed the Act to Improve the Administration of Justice, 102 Stat. 663. This law eliminated most appeals by right to the Supreme Court, requiring the Court to hear appeals only in cases involving federal civil rights laws, legislative reapportionment, federal antitrust actions, and a few other matters. As a result of this growth in discretionary jurisdiction, the Supreme Court has the ability to set its own agenda.

A party who seeks review of a decision petitions the Court for a writ of certiorari, an ancient pleading form that grants the right for review. The justices deliberate in private on whether the issues presented by the case are significant enough to merit review. They operate under an informal rule of four, which means that certiorari will be granted if any four justices favor it. If certiorari is granted, the justices can decide the case on the papers submitted or schedule a full argument before the Court. If certiorari is denied, the matter ends there. With discretionary review, the justices have complete freedom in deciding whether to hear the case, and no one may question or appeal their decision.

The Supreme Court also has special jurisdiction to answer certified questions sent to it from a federal court of appeals or from the U.S. Claims Court. The Supreme Court can either give instructions that the lower court is bound to follow or require the court to provide the record so that the Supreme Court can decide the entire lawsuit. Certification is rarely used.

Decisions

The decisions of the Supreme Court, whether by a denial of certiorari or by an opinion issued following oral argument, are final and cannot be appealed. A Supreme Court decision based on an interpretation of the Constitution may be changed by constitutional amendment. Congress may modify a decision that is based on the interpretation of an act of Congress by passing a law that directs the Court as to congressional intent and purpose. However, Congress has no power to modify a High Court decision that is based on the Court's interpretation of the Constitution. Finally, the Court may overrule itself, although it rarely does so.

Rule Making

Congress has conferred upon the Supreme Court the power to prescribe rules of procedure that the Court and the lower federal courts must follow. The Court has promulgated rules that govern civil and criminal cases in the district courts, bankruptcy proceedings, admiralty cases, copyrights cases, and appellate proceedings.

further readings

Baum, Lawrence. 2004. The Supreme Court. 8th ed. Washington, D.C.: CQ Press.

Fried, Charles. 2004. Saying What the Law Is: The Constitution in the Supreme Court. Cambridge, Mass.: Harvard Univ. Press.

Haines, Charles Grove. 2002. The Role of the Supreme Court in American Government and Politics. Union, N.J.: Law-book Exchange.

Langran, Robert. 2003. The Supreme Court: A Concise History. New York: Peter Lang.

Rehnquist, William H. 2002. The Supreme Court. New York: Vintage Books.

U.S. Supreme Court. Available online at <www.supremecourtus.gov> (accessed October 21, 2003).

cross-references

Judicial Review.

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Supreme Court

SUPREME COURT

An appellate tribunal with high powers and broad authority within its jurisdiction.

The U.S. government and each state government has a supreme court, though some states have given their highest court a different name. A supreme court is the highest court in its jurisdiction. It decides the most important issues of constitutional and statutory law and is intended to provide legal clarity and consistency for the lower appellate and trial courts. Because it is the court of last resort, a supreme court's decisions also produce finality. In addition, a supreme court oversees the administration of the jurisdiction's judicial system.

A supreme court is established by a provision in the state or federal constitution. The legislative bodies of the jurisdiction enact statutes that create a court system and provide funding for it. A supreme court usually consists of five, seven, or nine judges, who are called justices. In the federal courts, the justices are appointed for life, whereas the states have a variety of selection methods. Typically the state governor will appoint a state supreme court justice, and then he will stand for election within two years to serve a full term, which may be from six to twelve years. A judicial election may involve a contest between the justice and another candidate, or it may be a retention election, where the voters must decide whether the judge should be retained for another term.

A supreme court consists of the justices, their administrative support staff, law clerks, and staff attorneys. As an appellate court, it is limited to reviewing trial proceedings and, if applicable, intermediate appellate court decisions. No new testimony is taken, and the arguments before the court by the parties are confined to points of substantive law and procedure. A supreme court holds public proceedings, called oral arguments, in which the attorneys for the parties are given a short amount of time to advocate their positions and answer questions from members of the court. The justices, who have been briefed on the case prior to the oral arguments, conduct a conference on the case following the oral arguments.

At this meeting the justices express their opinions and vote on the case. The chief justice typically assigns a member of the court to write the majority opinion. Once a justice circulates an opinion to the court, the other justices are free to comment, criticize, and offer suggestions on how the opinion can be improved. The author of the opinion generally tries to accommodate the other justices' ideas. However, if a fundamental difference arises during the circulation process, justices may shift sides and change the outcome of the decision. At that point, a justice in the new majority will be assigned to write the opinion. A justice is always permitted to file a dissenting opinion if she disagrees with the outcome.

Once the court releases an opinion, it is published in an official report. The decision of the court is generally final, absent special circumstances. If the court's decision is based on an interpretation of a constitutional provision, it is final unless the constitution is amended or the court reverses itself at some later time. This is rarely done. For example, the U.S. Supreme Court decision in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), legalized abortion based on a constitutional right of privacy. Those opposed to abortion have sought to have Congress pass a constitutional amendment to overturn the decision or to convince the Court to reverse its decision, but without success.

If a supreme court's decision is based on statutory interpretation, its reading of legislative intent or purpose may be overridden by the legislature. A law can be enacted that "corrects" the court and directs it to honor specific intentions of the legislature.

Every supreme court has a procedure to limit the number of cases it hears. The U.S. Supreme Court uses a writ of certiorari, which is a legal pleading that requests the Court to hear the case. State supreme courts have similar pleadings, sometimes called petitions for review, which also allow the court discretion in choosing cases to consider. Typically cases are chosen to resolve conflicts in the lower courts or to decide new legal issues.

Apart from discretionary review, supreme courts permit direct appeal, or appeal by right, on a limited set of cases. At the state level, appeals of first-degree murder and death penalty cases are heard by supreme courts, bypassing the intermediate court of appeals. The U.S. Supreme Court hears direct appeals of cases involving federal reapportionment, disputes between states, and a few other issues.

Supreme courts also administer their judicial systems, overseeing the trial and intermediate appellate courts. In addition, supreme courts enact the rules of procedure that govern the workings of their court systems. Examples include rules of civil, criminal, and appellate procedure, as well as rules of evidence. Most state supreme courts also oversee the admission of attorneys to the bar and discipline attorneys for ethical violations.

cross-references

Court Opinion; State Courts.

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Supreme Court Justices ( (table))

Supreme Court Justices

Supreme Court Justices
(including dates on bench)
Chief Justices
John Jay 1789–95
John Rutledge 1795
Oliver Ellsworth 1796–1800
John Marshall 1801–35
Roger B. Taney 1836–64
Salmon P. Chase 1864–73
Morrison R. Waite 1874–88
Melville W. Fuller 1888–1910
Edward D. White 1910–21
William H. Taft 1921–30
Charles E. Hughes 1930–41
Harlan F. Stone 1941–46
Fred M. Vinson 1946–53
Earl Warren 1953–69
Warren E. Burger 1969–86
William H. Rehnquist 1986–2005
John G. Roberts, Jr. 2005–
Associate Justices
John Rutledge 1789–91
William Cushing 1789–1810
James Wilson 1789–98
John Blair 1789–96
Robert H. Harrison 1789–90
James Iredell 1790–99
Thomas Johnson 1791–93
William Paterson 1793–1806
Samuel Chase 1796–1811
Bushrod Washington 1798–1829
Alfred Moore 1799–1804
William Johnson 1804–34
Henry Brockholst Livingston 1806–23
Thomas Todd 1807–26
Gabriel Duval 1811–36
Joseph Storey 1811–45
Smith Thompson 1823–43
Robert Trimble 1826–28
John McLean 1829–61
Henry Baldwin 1830–44
James M. Wayne 1835–67
Philip P. Barbour 1836–41
John Catron 1837–65
John McKinley 1837–52
Peter V. Daniel 1841–60
Samuel Nelson 1845–72
Levi Woodbury 1845–51
Robert C. Grier 1846–70
Benjamin R. Curtis 1851–57
John A. Campbell 1853–61
Nathan Clifford 1858–81
Noah H. Swayne 1862–81
Samuel F. Miller 1862–90
David Davis 1862–77
Stephen J. Field 1863–97
William Strong 1870–80
Joseph P. Bradley 1870–92
Ward Hunt 1873–82
John M. Harlan 1877–1911
William B. Woods 1881–87
Stanley Matthews 1881–89
Horace Gray 1882–1902
Samuel Blatchford 1882–93
Lucius G. C. Lamar 1888–93
David J. Brewer 1890–1910
Henry B. Brown 1891–1906
George Shiras, Jr. 1892–1903
Howell E. Jackson 1893–95
Edward D. White 1894–1910
Rufus W. Peckham 1896–1909
Joseph McKenna 1898–1925
Oliver W. Holmes 1902–32
William R. Day 1903–22
William H. Moody 1906–10
Horace H. Lurton 1910–14
Charles E. Hughes 1910–16
Willis Van Devanter 1911–37
Joseph R. Lamar 1911–16
Mahlon Pitney 1912–22
James C. McReynolds 1914–41
Louis D. Brandeis 1916–39
John H. Clarke 1916–22
George Sutherland 1922–38
Pierce Butler 1923–39
Edward T. Sanford 1923–30
Harlan F. Stone 1925–41
Owen J. Roberts 1930–45
Benjamin N. Cardozo 1932–38
Hugo Black 1937–71
Stanley F. Reed 1938–57
Felix Frankfurter 1939–62
William O. Douglas 1939–75
Frank Murphy 1940–49
James F. Byrnes 1941–42
Robert H. Jackson 1941–54
Wiley B. Rutledge 1943–49
Harold H. Burton 1945–58
Thomas C. Clark 1949–67
Sherman Minton 1949–56
John M. Harlan 1955–71
William J. Brennan, Jr. 1956–90
Charles E. Whittaker 1957–62
Potter Stewart 1958–81
Byron R. White 1962–93
Arthur J. Goldberg 1962–65
Abe Fortas 1965–69
Thurgood Marshall 1967–91
Harry A. Blackmun 1970–94
Lewis F. Powell, Jr. 1971–87
William H. Rehnquist 1971–86
John Paul Stevens 1975–2010
Sandra Day O'Connor 1981–2006
Antonin Scalia 1986–
Anthony M. Kennedy 1988–
David H. Souter 1990–2009
Clarence Thomas 1991–
Ruth Bader Ginsburg 1993–
Stephen G. Breyer 1994–
Samuel A. Alito, Jr. 2006–
Sonia Sotomayor 2009–
Elena Kagan 2010–

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Court, Supreme

COURT, SUPREME

The Supreme Court is "the highest judicial body for civil, criminal, administrative and other cases falling within the jurisdiction of courts of general jurisdiction" under Article 126 of the Russian Constitution. The courts of general jurisdiction hear all cases except: (1) lawsuits among businesses and between businesses and government agencies, which are heard by the Arbitration Court system; and (2) certain Constitutional issues, which are heard by the Constitutional Court. Beneath the Supreme Court are the highest courts of each of the eightynine subjects of the Russian Federation and the military courts. Beneath the courts of the subjects of the Russian Federation are a large number of district courts. Still lower in the hierarchy are Justice of the Peace Courts, which deal with relatively unimportant cases. The court structure and the relations between the courts are governed by the 1996 Constitutional Law on the Judicial System of the Russian Federation. Procedural rules are provided by the 2001 Criminal Procedure Code and the 2002 Civil Procedure Code.

The Supreme Court has separate divisions for civil cases, criminal cases, and military cases. It has a President and a Presidium consisting of several high officers of the court. It also has a plenary session in which all the judges meet together. The Judicial Department of the Supreme Court handles the administration of all the courts of general jurisdiction. Most cases are heard by the Supreme Court on appeal from or petition for review of lower court decisions. Because the court sits in separate divisions and has a large number of judges, it is able to review a very large number of lower court cases. However, a few very important cases are heard by the Court in first instance. There is a mechanism for an appeal of these decisions to a higher level of the Supreme Court itself. The plenary session of the Court also has the power to issue interpretations of the law for the guidance of the lower courts. The interpretations and many other Court decisions are published at its web site. As the result of easy availability of these interpretations and decisions, lawyers are increasingly studying and citing Supreme Court rulings.

The Supreme Court has in some cases refused to apply statute laws on the basis that they contradicted the Constitution. Gradually, however, its policy changed. When in doubt on the constitutionality of a law, the Supreme Court has typically referred the question to the Constitutional Court. However, the Supreme Court frequently hears cases concerning the conformity of administrative regulations to the Constitution and laws, and frequently invalidates such regulations. The Supreme Court of the twentyfirst century is very different from the Supreme Court of the Soviet period, even though the court structure is little changed. In the Soviet period the Court was subservient to the Party authorities. The court did not control judicial administration, which was managed by the Ministry of Justice. It did cite the Constitution, but never refused to apply a law on the basis of the Constitution alone.

See also: court, high arbitration; legal systems.

bibliography

Burnham, William, and Danilenko, Gennady M. (2000). Law and Legal System of the Russian Federation, 2nd ed. Huntington, NY: Juris.

Krug, Peter. (1997). "Departure from the Centralized Model: the Russian Supreme Court and Constitutional Control of Legislation." Virginia Journal of International Law 37:725-786.

Maggs, Peter B. (1997) "The Russian Courts and the Russian Constitution." Indiana International and Comparative Law Review 8:99-117.

Peter B. Maggs

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Supreme Court of the United States

Supreme Court of the United States US court of final appeal, the highest in the nation. Its duty is to decide and interpret the constitutionality of state and federal legislation and of executive acts. Once the Supreme Court arrives at a decision, all lower courts must follow it in similar cases. Cases are decided by majority vote. Created by the Constitution of 1787, the Supreme Court consists of nine justices appointed for life by the president with the advice and consent of the Senate.

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Supreme Court

Su·preme Court • n. the highest judicial court in most U.S. states. ∎  (in full U.S. Supreme Court) the highest federal court in the U.S., consisting of nine justices and taking judicial precedence over all other courts in the nation.

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United States Supreme Court

United States Supreme Court: see Supreme Court, United States.

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