Devoir de Philosophie

Supreme Court of the United States.

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Supreme Court of the United States. I INTRODUCTION Supreme Court of the United States, highest court in the United States and the chief authority in the judicial branch, one of three branches of the United States federal government. The Supreme Court hears appeals from decisions of lower federal courts and state supreme courts, and it resolves issues of constitutional and federal law. It stands as the ultimate authority in constitutional interpretation, and its decisions can be changed only by a constitutional amendment. Nine judges sit on the Court: the chief justice of the United States and eight associate justices. The president of the United States appoints them to the Court for life terms, but the U.S. Senate must approve each appointment with a majority vote. Justices and Court staff work in the Supreme Court Building, constructed in 1935, across the street from the Capitol in Washington, D.C. Before 1935 the justices met in various rooms in the Capitol and elsewhere. The Supreme Court wields complete authority over the federal courts, but it has only limited power over state courts. The Court has the final word on cases heard by federal courts, and it writes procedures that these courts must follow. All federal courts must abide by the Supreme Court's interpretation of federal laws and the Constitution of the United States. The Supreme Court's interpretations of federal law and the Constitution also apply to the state courts, but the Court cannot interpret state law or issues arising under state constitutions, and it does not supervise state court operations. The Supreme Court's most important responsibility is to decide cases that raise questions of constitutional interpretation. The Court decides if a law or government action violates the Constitution. This power, known as judicial review, enables the Court to invalidate both federal and state laws when they conflict with its interpretation of the Constitution. Judicial review thus puts the Supreme Court in a pivotal role in the American political system, making it the referee in disputes among various branches of government, and as the ultimate authority for many of the most important issues in the country. In 1954, for example, the Court banned racial segregation in public schools in Brown v. Board of Education. The ruling started a long process of desegregating schools and many other aspects of American society. In the 1973 case of Roe v. Wade, the Court overturned state prohibitions on abortion--concluding that the Constitution guarantees every woman a right to choose an abortion, at least during early stages of a pregnancy. The Court's constitutional decisions have affected virtually every area of American life, from the basic ways in which business and the economy are regulated to freedom of speech and religion. II POWER OF THE SUPREME COURT The Supreme Court is the only court mentioned by name in the Constitution. Article III establishes the Court as the top of the country's judicial branch, making it equal to the executive branch (the president) and the legislative branch (Congress). Article III also gives the Court jurisdiction (authority to review) over broad classes of cases. In 1803 in Marbury v. Madison the Court interpreted its own authority, ruling that the Constitution gave it the power to strike down unconstitutional acts of government--that is, laws or other government conduct that violate the Constitution. This decision created the power of judicial review, an essential component in the American system of checks and balances, a system that is intended to safeguard Americans from government abuses of power. III JURISDICTION Article III gives the Supreme Court two types of jurisdiction. The Court's most important jurisdiction is appellate, the power to hear appeals of cases decided in lower federal courts and state supreme courts. Under Article III, the Court's appellate jurisdiction extends to seven classes of cases: (1) cases arising under the Constitution, federal law, or treaty; (2) those involving admiralty and maritime matters; (3) those in which the United States itself is a party; (4) cases between two or more states; (5) cases between citizens of different states or foreign countries; (6) cases between a state and individuals or foreign countries; and (7) cases between citizens of the same state if they are disputing ownership of land given by different states. The first category is the most important. In these cases, part of the federal question jurisdiction, the Court issues its most far-reaching constitutional decisions and other major rulings involving federal law. The Supreme Court has a far less important authority known as its original jurisdiction, which includes cases that have not been previously heard in other courts. This gives the Court the power to sit as a trial court to hear cases affecting ambassadors and other foreign officials, and in cases in which a state is a party. The Court rarely exercises its original jurisdiction, since Congress has granted concurrent jurisdiction over most of these cases to the lower courts. Only disputes between two or more states must be heard initially in the Supreme Court. In 1997 and 1998, for example, it heard a dispute between New York and New Jersey over the ownership of Ellis Island. Congress cannot alter the Supreme Court's original jurisdiction, but Article III of the Constitution gives it power to control the Court's appellate jurisdiction. The Court may not exercise any of its appellate jurisdiction without congressional authorization, and Congress may limit the appellate jurisdiction however it chooses. Congress has authorized the Court to use its full appellate jurisdiction, except on rare occasions. IV JUDICIAL REVIEW The Supreme Court's principle power is judicial review--the right of the Court to declare laws unconstitutional. This authority is not expressly stated in the Constitution. The Supreme Court has exercised judicial review since 1803, when Chief Justice John Marshall first announced it in Marbury v. Madison. Marshall deduced the necessity of such a power from the purpose and existence of the Constitution. He reasoned that judicial review was necessary to implement the Constitution's substantive and procedural limits on the government. If the Court could not strike down a law that conflicted with the Constitution, Marshall said, then the legislature would have a "real and practical omnipotence." Judicial review is both a powerful and controversial tool because it allows the Supreme Court to have the ultimate word on what the Constitution means. This permits the Court justices--who are appointed rather than elected--to overrule decisions already made by Congress and legislatures throughout the country. V MEMBERSHIP The Constitution does not specify the number of justices on the Supreme Court, leaving the issue to Congress. The first Supreme Court in 1789 consisted of five justices. Initially the justices' duties included traveling through the country to hear cases in federal circuit courts. Congress added a sixth seat in 1790 and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a tenth seat, only to abolish it when a justice died in 1865. In 1867 Congress reduced the seats to seven to limit the opportunity of President Andrew Johnson to appoint new members. Congress restored the number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices' circuit-riding burden. The number of justices has remained fixed at nine, making tie votes unlikely unless circumstances prevent a justice from participating in deliberations. VI QUALIFICATIONS The Constitution does not specify formal qualifications for membership on the Supreme Court. From the beginning, though, justices have all been lawyers, and most pursued legal and political careers before serving on the Court. Many justices served as members of Congress, governors, or members of the Cabinet. One president, William Howard Taft, was later appointed chief justice. Some justices came to the Court from private law practice, and others were appointed from positions as law professors. Many justices appointed in the second half of the 20th century had experience in the United States courts of appeal and other lower courts. Only one justice, Charles Evans Hughes, was confirmed as a Supreme Court justice twice. President Taft appointed Hughes, then governor of New York, to the Court in 1910. Hughes gave up his Court seat in 1916 to run for president, but he lost in a close race against Woodrow Wilson. In 1930 President Herbert Hoover returned Hughes to the Court as chief justice. VII APPOINTMENT AND CONFIRMATION Justices of the Supreme Court are appointed by the president and must be confirmed by a majority vote in the Senate. The president usually chooses the nominees carefully to minimize the possibility that the justice will veer far from the administration's own agenda after he or she is confirmed. The president must also be careful to select a nominee with strong chances for Senate confirmation, otherwise the administration may lose prestige in a bruising confirmation battle with the Senate. Presidents often try to secure Senate support by balancing the Court's geographic and regional background. Many 20th-century presidents have also tried to balance the Court's religious, racial, ethnic, and gender makeup. Only Protestants served on the Court until 1836, when the Senate confirmed President Andrew Jackson's nomination of Roger B. Taney, a Catholic. Since then there has almost always been a Catholic on the Court. Louis D. Brandeis was the first Jewish justice in 1916. Civil rights lawyer Thurgood D. Marshall became the first African American justice in 1967. President Ronald Reagan appointed the first woman, Sandra Day O'Connor, in 1981. The first Italian American, Antonin Scalia, came to the Court in 1986. In the late 1990s, the Court consisted of four Protestants, three Catholics, and two Jews; seven men, one of whom was black, and two women. Two were from Arizona (Chief Justice William H. Rehnquist and Sandra Day O'Connor), and one each were from California (Anthony M. Kennedy), the District of Columbia (Scalia), Georgia (Clarence Thomas), Illinois (John Paul Stevens), Massachusetts (Stephen G. Breyer), New Hampshire (David H. Souter), and New York (Ruth Bader Ginsburg). On average, the Senate rejects about 20 percent of all nominees to the Supreme Court. The president's choice must face questioning by the Senate Judiciary Committee, which then makes a recommendation to the Senate as a whole. The Senate began asking nominees to appear before the Judiciary Committee only in 1925, when President Calvin Coolidge's nomination of Harlan Fiske Stone was in jeopardy. Felix Frankfurter, a nominee of President Franklin Delano Roosevelt, testified before the Senate Judiciary Committee in 1939. Such appearances before the committee became accepted practice in 1955, when John M. Harlan testified. Confirmation hearings are sometimes polite, quiet affairs, but some have been intensely political dramas that have gripped the nation. In 1987, for example, the Senate held 12 days of rancorous hearings into President Ronald Reagan's nomination of Judge Robert Bork. Although Bork had strong qualifications, his conservative views led many groups throughout the country to oppose his nomination. Some senators charged that he had undergone a "confirmation conversion"--contradicting his earlier published views to secure appointment. The full Senate defeated the nomination by a vote of 58 to 42. In 1991 President George Bush nominated Judge Clarence Thomas to replace the ailing Thurgood Marshall. An initial debate over his qualifications gave way to a nationally televised drama over a leaked accusation by Oklahoma University Law School Professor Anita Hill that Thomas had sexually harassed her. Thomas bitterly denied the allegations, charging that he was the victim of a "high-tech lynching." The Senate eventually confirmed him by a vote of 52 to 48, the second closest vote in history. VIII REMOVAL FROM OFFICE Justices serve lifetime appointments. Under the Constitution they can be removed from the Court only by first being impeached (accused) by a majority vote of the U.S. House of Representatives and then convicted by a two-thirds vote of the Senate. There is no precise standard for determining whether a justice has committed an impeachable offense, though the consensus is that removal should be for criminal or ethical lapses, not for partisan political reasons. No justice has ever been removed through this process, and only one justice of the Supreme Court has ever been impeached. In 1805 Justice Samuel Chase was impeached in the House by his political enemies, but the Senate failed to convict when it became apparent that Chase's opponents were after him not because he had committed any wrongdoing but because they disagreed with his decisions. The possibility of impeachment may have been a factor in the resignation of Justice Abe Fortas, who left the Court in 1969 after allegations surfaced that he had accepted a questionable fee from a private foundation. Some conservative groups rallied for the removal of Chief Justice Earl Warren in the 1960s, but their efforts failed. In the wake of the controversy over Abe Fortas's financial practices, the Court became more restrained in its public activities. Once confirmed to the Court, justices try to ensure that their investments and outside income do not bring their integrity into question. Common practice now dictates that justices also remove themselves from politics, refraining from speaking out about controversial issues or pending legislation. The justices can make public speeches, but these are usually confined to subjects related to the law in general and to the federal court system. In these and other questions of judicial ethics the Court usually follows the American Bar Association (ABA) Code of Judicial Conduct, although these rules are not binding on the Court. IX THE WORK OF THE COURT The Supreme Court hears only a tiny fraction of the cases that come before it. When the Court declines to hear a case, the decision of the lower court stands as the final word on the case. Each year the Court receives thousands of petitions to hear cases, but it usually decides to consider only a few. In 1995, for example, the Court had 7,565 cases on its docket, and the justices heard oral arguments in just 90 and issued signed opinions--written explanations of its decisions--in only 75. Ten years earlier the Court's docket had been much smaller, consisting of 5,185 cases, although it issued signed opinions in 151 cases. The growth in petitions has many causes: a larger population, a more complex economy, and the proliferation of business and other relationships. Adding to the Court's workload is a steady growth in congressional and state legislation that requires judicial interpretation, and an increasing number of constitutional and other issues that can be reviewed in the federal courts. By law the Court's term begins the first Monday in October and usually runs through the end of June, after disposing of all cases that have been argued during the term. On rare occasions, when a critical case has arisen, the Court has heard arguments and issued decisions in the summer; for example, in 1974 the Court issued its decision in United States v. Nixon, the Watergate tapes case, on July 24. The Court does not meet continuously in formal sessions during its nine-month term. Instead, the Court divides its time into four separate but related activities. First, some time is allocated to reading through the thousands of petitions for review of cases that come annually to the Court. This time is not formally assigned but is available during the summer and during those periods when the Court is not sitting to hear cases. Second, the Court allocates blocks of time for oral arguments--the live discussion in which lawyers for both sides present their clients' positions to the justices. From October through April, the justices meet in blocks of two consecutive weeks on Mondays, Tuesdays, and Wednesdays to hear oral arguments. These public sessions run from 10 AM to 3 PM, with a one-hour lunch recess, giving the Court time to hear from lawyers in four cases each day. During the weeks of oral arguments the Court sets aside its third allotment of time, for private discussions of how each justice will vote on the cases they have just heard. Time is also allowed for the justices to discuss which additional cases to hear. These private discussions are usually held on Wednesday afternoons and Fridays during the weeks of oral arguments. The justices set aside a fourth block of time to work on writing their opinions--the statements of what the justices have decided and their reasoning in the case. This writing period is usually in the weeks following each two weeks of oral argument. The chief justice presides at the justices' conferences and assigns a justice to write opinions. The chief justice also acts as spokesperson for the Court and for the federal judicial system, and supervises the Court's budget and administrative staff. But in the central matter of hearing and deciding cases, the chief justice and the associate justices are equals. For a major government institution, the Supreme Court has a relatively small staff of about 325 people. The Court's annual budget is about $30 million, a tiny fraction of the total budget for the federal judiciary, which stood at $3.1 billion in 1996. Congress's annual budget that year was about $2 billion. In 1996 Congress set the chief justice's salary at $171,500, and the associate justices' at $164,100. The clerk of the Court serves as the Supreme Court's chief administrative officer, supervising a staff of 30 under the guidance of the chief justice. The marshal of the Court supervises all building operations. The reporter of decisions oversees the printing and publication of the Court's decisions. Other key personnel are the librarian and the public information officer. In addition, each justice is entitled to hire four law clerks, almost always recent top graduates of law schools, many of whom have served clerkships in a lower court the previous year. X HOW CASES COME BEFORE THE COURT For much of the Supreme Court's history, Congress required it to hear a large percentage of cases appealed from the lower courts. But over the years Congress eliminated parts of this mandatory jurisdiction, granting the Court more discretion to control its own calendar of cases. In 1988 Congress abolished almost all mandatory jurisdiction so that today only a tiny fraction of cases now must be heard on appeal. The Court otherwise has complete discretion to control the nature and number of the cases it reviews by means of the writ (order) of certiorari. The word certiorari comes from Latin and means "to be informed." The writ of certiorari is an order from a higher court directing a lower court to send the record of a case for review. The Court has long considered requests for writs of certiorari according to the rule of four, which says that if four justices decide to "grant cert," in the usual colloquial phrase, the Court will agree to hear the case. Of the 6,000 or so certiorari (cert) petitions filed each year, the Court agrees to consider no more than about 150 and sometimes fewer. A petition for a writ of certiorari is a written document, generally filed by lawyers for the parties (though many prisoners without lawyers write their own petitions). The party wishing to have the case heard is known as the petitioner, and the side that won the case in the lower court is known as the respondent. People seeking review of mandatory appeals are known as appellants, and their opponents are appellees. In almost all cases, Supreme Court review may be sought only after the possibility of all other appeals in the lower courts has been exhausted. Some cases come to the Court because two or more lower federal courts have issued conflicting rulings on the same issue. The justices have the right to sort through the cert petitions individually, but since the 1970s most of the justices have belonged to the cert pool. In the cert pool, the justices' law clerks gather to sort through the petitions, and each case is assigned to a clerk who summarizes the facts, analyzes the legal issues, and makes a recommendation to the Court. This provides the justices with a quick way of deciding whether the case is certworthy--whether it should be considered further by the full Court. The chief justice maintains a discuss list, which includes all the cases he thinks are worth considering at the justices' Friday conference. Any justice may add a case to the discuss list, but if a case is not put on the list, it is automatically refused a hearing by the Court. Relatively little time is devoted to discussing whether most of the petitions should be heard. XI CRITERIA FOR SELECTING CASES The Supreme Court tries to avoid deciding cases whenever it can. This reluctance, which is called judicial self-restraint, stems partly from the crushing volume of work facing the Court but also from a need to maintain stability in the American legal system. Each Supreme Court ruling can affect the outcome of hundreds or even thousands of cases in lower courts around the country. The Court tries to use this enormous power only when a case presents a pressing constitutional issue. The Court relies on several criteria to decide if a case requires action. To win Supreme Court review, a case must fall within the Court's jurisdiction, raise a justiciable legal issue, and concern an issue of constitutional or legal importance. Most cases do not meet these criteria, so the Court refuses to grant certiorari. A denial of a writ of certiorari means that the case is over, and the decision in the lower court stands as final. A denial of certiorari is not a judgment of the Supreme Court, so it is incorrect to say that the Court agreed with the lower court. Denials of writs of certiorari have no value as precedents. The most fundamental question is whether a case falls within the Court's jurisdiction. The Court can only hear cases that are mandated by Congress or the Constitution. The Constitution does not give the Supreme Court the power, for example, to hear cases that involve interpreting a state constitution, unless the cases raise the question of conflict with the United States Constitution. If a case does fall within the court's jurisdiction, it must also be justiciable, meaning it raises questions that are appropriate for the Court to answer. Under Article III of the Constitution, the Court may hear only "Cases and Controversies." The Court regards several types of disputes as outside this responsibility. It does not issue advisory opinions--statements of legal interpretation about potential cases. The Court issues opinions only in cases formally brought before it through the legal system. The Court also hears only cases that pass the ripeness test--those that present an actual and substantial threat to individual rights or other constitutional provisions. In 1947, for example, the Court decided in United Public Workers v. Mitchell, that a group of federal workers could not block enforcement of a law that created only the possibility of a threat to their First Amendment rights. Similarly, a case must meet the mootness standard--presenting a current problem that has yet to be resolved. Ruling in DeFunis v. Odegaard in 1974, for example, the Court held that a student could not challenge allegedly discriminatory law school admissions procedures after he had already been admitted to the law school and was about to graduate. The Supreme Court also requires that a party bringing a case have standing--a strong vested interest in the issues raised in the case and in its outcome. In most instances, for example, a taxpayer cannot sue the government for unwise spending, unless he or she can show a direct injury resulting from the spending. The Court also refuses to hear cases known as political questions, although it often considers cases that affect the political system. The precise definition of a political question is less clear than other Court justiciability doctrines, but analysis of the issue usually focuses on whether a question is best left to the discretion of another branch of government. The Supreme Court does not, for example, hear most cases challenging the president's foreign policy decisions. Similarly, the Court rarely considers cases involving the military's rules and regulations, preferring to leave these questions to the armed forces. The political question doctrine does not, however, prevent the Court from issuing rulings on thorny political issues such as how to draw congressional districts. XII BRIEFING AND ORAL ARGUMENT When the Supreme Court agrees to hear a case, the parties' lawyers submit briefs before oral argument. A brief includes a written statement of the facts of the case, a discussion of the law and precedents, and an argument that shows how the law should be interpreted in the party's favor. In 1980 the Court established a rule that limits briefs to 50 pages. The justices read the briefs and the record of the case from the lower court quite thoroughly. Justices and advocates over the years have said that many cases are won or lost on the strength of the briefs. In addition to the parties' briefs, the Court occasionally permits individuals and groups with an interest in the case to file an amicus curiae, or friend-of-the-court, brief. An amicus brief allows parties not directly involved in the case to offer their views about the issues at stake and the likely impact of a decision. The United States and state governments may file amicus briefs in particular cases without requesting permission. In important cases, dozens of such briefs may be filed. After briefs are submitted, the justices set a date for oral argument. In private cases, a lawyer represents each party. The Court appoints a lawyer to present appeals on behalf of individuals too poor to pay their own expenses. The solicitor general, the third-ranking official in the Department of Justice, presents the government's position in cases involving the federal government. States have their own rules for determining who will appear when they are parties to Supreme Court appeals. In the early years of the Court, oral argument in a single case could go on for days, and the leading orators of the time would draw crowds to hear them debate. Today the process is strictly regulated. In all but the rarest cases, each side has exactly 30 minutes to present oral arguments to the justices. Typically, the advocate begins to state his or her position, only to be interrupted by questions from the justices that last through the allotted time. At the end of 30 minutes a red light at the lawyer's lectern turns on, and the lawyer is told to stop, sometimes even in midsentence. The oral arguments can be decisive. It is the only opportunity to give direct answers to pointed questions. Charles Fried, a former solicitor general, has written that "a successful oral argument is more like a compelling conversation than a lecture." All nine justices sit to hear the oral arguments. The Supreme Court does not sit in smaller panels, except in cases of illness or when a justice recuses (disqualifies) himself or herself from participating, perhaps because of a relationship with one of the lawyers or because of some personal interest in the case. At least six justices must be present to hear oral arguments. The public may attend all oral arguments, which are held in the main courtroom on the first floor. Since 1955 oral arguments have been officially taped, and in recent years they have been made available for listening and purchase by the public. Obtaining the audiotapes can be a timeconsuming process, however. The Court bars all other tape recorders, cameras, and other recording devices, so journalists covering the Court must rely on official transcripts and on artists' sketches of the proceedings. XIII ANALYSIS AND DISCUSSION Every Wednesday and Friday during weeks when the Supreme Court hears oral arguments, the justices gather in conference to discuss cases they have heard. No one else is allowed in the room. If a messenger comes to the door, the junior justice goes to the door to receive the message. After a round of handshakes, the justices take assigned seats around a large conference table, and the chief justice begins the discussion by stating the facts of each case and presenting his conclusion. The justices in order of seniority then present their views and the chief justice declares the Court's tentative vote. It is not a meeting for extended argument among the justices, but merely to sound out the Court's likely decision. XIV WRITING OPINIONS Once the Court reaches a tentative decision, there remains the important task of writing an explanation of the legal reasoning behind the ruling. This document, known as the majority opinion, establishes the law on the issue in question, so justices take considerable care in drafting them. If the chief justice sides with the majority of justices in voting on a particular case, the chief justice can then assume responsibility for the task of writing the Court's majority opinion, or assign the task to another of the justices in the majority. If one or more justices disagree with the Court's decision, they may write a dissenting opinion that explains their views of the case and the law. If the chief justice sides with the dissenting minority, then the most senior justice in the majority writes the majority opinion or assigns the task to another of the justices in the majority. The justices often ask their clerks to prepare the first drafts of their opinions. This practice, Chief Justice William Rehnquist wrote, "may undoubtedly and with some reason cause raised eyebrows in the legal profession and outside of it." But as Rehnquist explained, the "law clerk is not off on a frolic of his own, but is instead engaged in a highly structured task which has been largely mapped out for him by the conference discussion and my suggestions to him." Few drafts escape heavy editing and revisions by the justices. Justices may take weeks or even months to complete their opinions, and votes may change during this period. The justices circulate drafts of the opinions and sometimes write memos to explain their views. Dissenting justices sometimes decide to go along with the majority, and justices initially in the majority may decide to support the dissenting view. In some cases enough justices change their votes that an opinion that began as the Court's majority opinion becomes a dissenting opinion. Because the justices can and often do change their votes right up until the moment the decision is publicly announced, there is often a considerable amount of discussion and negotiation to shape the direction, tone, and analysis of the Court's opinion. Although there is often a single majority opinion and a single dissenting opinion, each justice can write his or her own opinion on either side of the case. Separate opinions that support the majority decision are called concurring opinions and are published along with the majority opinion and any dissents. Only the majority opinion carries the force of law, but dissenting opinions sometimes signal possible new directions in the Court's thinking on an issue. When the opinions become final, the justices announce their decisions in open court. The opinions are then published in a variety of places. The Court records its official decisions in the United States Reports, a periodical published after each Supreme Court term. The United States Reports are often delayed by months or even years, so decisions are also published unofficially by private publishing houses. The most widely known of these publications are Supreme Court Reporter and United States Supreme Court Reports, Lawyers' Edition. Decisions appear the next day in U.S. Law Week, a pamphlet series. They are also available in the two major electronic commercial legal databases, Lexis and Westlaw, and on many World Wide Web sites. XV EFFECTS OF THE COURT'S DECISIONS The Supreme Court declares constitutional and legal rights, but it has no force to compel obedience to its decisions. Other branches of government have from time to time failed to comply with constitutional rules. In a few instances the government and private citizens actively resisted both the letter and spirit of the Court's rulings. For example, Southern states followed a policy of massive resistance to the decision in Brown v. Board of Education (1954), refusing to proceed with the Court's order to desegregate public schools. Yet to a remarkable degree, sooner or later other branches of the federal government and state and municipal authorities fall into line, for several reasons. First, there has been a broad historical consensus that Supreme Court decisions are to be respected, so that public opinion in most instances will eventually turn against other branches that resist a Supreme Court ruling, prompting changed public policy through elections. Second, to a large extent the Court itself abides by its own decisions. This principle, known as stare decisis--let the decision stand--tends to make the law consistent and predictable, discouraging people from defying a ruling by hoping that they can go back to the Court to secure a different ruling. Third, other courts, both state and federal, are bound to follow the Supreme Court's decisions on constitutional and federal law. Officials and private citizens alike who fail to abide by the logic of a decided case can thus be brought back to court. The principle of stare decisis does not stop the Supreme Court from altering or overturning its own legal precedents. On occasion the Court has dramatically departed from what seemed a settled precedent. In one case the Court waited just three years before it issued a new ruling. The Court ruled in 1940 in Minersville School District v. Gobitis, by an 8-1 vote, that a public school can require schoolchildren to salute the flag, even though doing so violates their religious beliefs. For three years, members of the Jehovah's Witnesses were subject to threats and in some cases physical violence and even death for their continued resistance. In 1943 in West Virginia State Board of Education v. Barnette, the Court admitted its error and overruled the Gobitis case by a 6-3 vote. It said that freedom of speech means that the government cannot force people to express their beliefs. Sometimes the reversal of a precedent can cause sweeping changes in American society. In 1937, for example, the Court ruled in NLRB v. Jones & Laughlin Steel Corporation that Congress could regulate activities that had even an indirect effect on interstate commerce. This was one of a series of cases that moved the Court away from its longstanding view that Congress had only limited power to intervene in the economy. The reversal of 19th-century precedents on the issue paved the way for Court approval of minimum wage regulations in the Fair Labor Standards Act, old-age pensions in the Social Security Act, and many other elements of President Franklin Roosevelt's New Deal policies of the 1930s. Whether the Court's rulings will be accepted depends in part on how far the Court departs from public opinion. Some critics object when they perceive the Court as pursuing an "activist" agenda, rather than simply interpreting the Constitution. The Court comes under even heavier fire when it appears that justices are writing their own values into the Constitution. Quite often the critics who object to an activist Court are politically conservative, and those who favor judicial activism support liberal politics. But judicial activism and conservatism do not always reflect a liberal-conservative political split. Critics of the Court's expansion of procedural rights for criminal defendants in the 1950s and 1960s, for example, attacked the decisions as activist and politically liberal. On the other hand, critics of the Court's suppression of the government's power to regulate commerce in the 1920s complained that those decisions were activist and politically conservative. XVI HISTORY Since the early 19th century the Supreme Court has played a central role in resolving many of the country's most difficult problems. The Court has dealt with the issue of slavery and racism, the power of the federal government over the states, the role of the government in the economy, abortion, the rights of people accused of crimes, and many other complex issues. The Court's decisions have often stirred controversy, and those who disagree with its rulings have sometimes called its authority into question. Still, through most of its history the Supreme Court has stood as one of the most respected and trusted institutions in the United States. A Origins The Supreme Court heard few cases in its early years, and played a rather insignificant role in the political system. During the 1790s, three chief justices served only brief terms, and several nominees turned down presidential appointments. When the nation's capital moved to Washington, D.C., in 1800, the Court did not initially have its own building. The justices had to conduct sessions in a series of temporary venues that included a congressional committee room, a Library of Congress office, and a courtroom built in the Capitol basement. These meager facilities failed to reflect the Court's increased stature after John Marshall became chief justice in 1801. Marshall served on the Court for 34 years, still one of the longest tenures, and transformed the Court into a potent engine of the national government. In 1803 in Marbury v. Madison, he announced the doctrine of judicial review, and his opinion was given as that of the entire Court rather than, as had been the custom, the opinion of a single justice. In many other significant decisions, Marshall read the Constitution broadly to establish a wide scope of federal power for both Congress and the Court itself. Most significant was the 1819 decision in McCulloch v. Maryland, which defined congressional power quite broadly. Marshall held that the Necessary and Proper Clause in Article I, Section 8 of the Constitution permitted Congress to establish a national bank, even though no such power was expressly stated in the Constitution. In the same case the Court established the supremacy of the federal government by barring the states from taxing any part of the federal government. In 1824 in Gibbons v. Ogden, the Court broadened congressional power under the Commerce Clause in Article I, Section 8 of the Constitution, laying the groundwork for extensive federal regulation of interstate commerce. The Court under Marshall also claimed strong authority over the states by asserting its right to overturn state laws. In 1810 in Fletcher v. Peck, for example, the Court ruled that the Contracts Clause in Article I, Section 10 of the Constitution barred some state attempts at regulating economic activity. In 1819 the Marshall Court gave private corporations protection from state regulations in Dartmouth College v. Woodward (See Dartmouth College Case). In both of these cases the Supreme Court served notice that the states could not pass laws that conflicted with the federal Constitution, and that the Court would be the judge of such conflicts. But during Marshall's final years as chief justice in the 1830s, the Court recognized limits on federal power as well. In 1833 the Court ruled in Barron v. Baltimore, for example, that the Bill of Rights (the first ten amendments to the Constitution) applied only to the federal government and not to the states. B Commerce, Slavery, and Civil War By the 1830s the Court was forced to confront the issues raised by the country's rapid industrialization. As industry replaced agriculture, the Court under the leadership of Roger Brooke Taney sought to define the appropriate economic role for state and federal government. Early in Taney's term the Court confirmed the power of states to manage industrial development. In the 1837 case Charles River Bridge v. Warren Bridge, the Court ruled that Massachusetts could enact a law that hurt some economic interests if it encouraged long-term economic growth overall. The Court decided in Swift v. Tyson in 1842 that federal courts had authority to develop general commercial law when the citizens of different states had legal conflicts, and the decision stood until 1938 when the Court said such authority belonged only to the states. In 1848 in West River Bridge v. Dix, the Court upheld the states' constitutional authority to curb corporations--their power of eminent domain--as long as they paid just compensation for what they took. This case greatly aided the rapid growth of the new railroads. In Genesee Chief v. Fitzhugh (1852) the Court reversed a Marshall decision and expanded the reach of federal jurisdiction over the inland waterways. The Court also prevented the states from interfering with the development of steamships. Although the Supreme Court's decisions in the first half of the 19th century helped the economy, that Court would forever be condemned in history's eyes because of its position on slavery. Four of the Court's nine members were from slave states, and only Justice John McLean clearly opposed slavery. The Court issued several proslavery opinions, including the notorious case of Dred Scott v. Sandford (1857), which most historians consider a major step toward the Civil War (1861-1865). In the Dred Scott case, a slave owner hoped to secure an opinion from the Court declaring that slaves who escaped to free states did not automatically become free. The Court could have limited its opinion to a narrow reading of Scott's right to sue in federal court, but instead went much further. First, the Court ruled that the federal government had no authority to control slavery in federal territories before they became states, even though Congress had done just that in the Missouri Compromise of 1820. It was the first time since Marbury v. Madison that the Court had overturned a federal law as unconstitutional. Second, the Court denied that even free blacks could be citizens of the United States. The Court seemed to say that not even free states could prohibit slavery, thus making political solutions and compromise among the states virtually impossible. Chief Justice Taney thought that he had resolved the issue of slavery once and for all. In a sense the Court had settled the issue, but only by sending the nation into civil war. The northern reaction to the Dred Scott case led directly to Abraham Lincoln's election as the first Republican president, the South's secession, and the war that ended slavery. Some blame for the American Civil War certainly falls on the failed political leadership in the White House and Congress, but the Supreme Court merits criticism as well. C From Reconstruction to the New Deal Chief Justice Taney died in 1864, leaving the Court just as it faced Reconstruction--the process of rebuilding the South's tattered economic and political structures. The Congress, dominated by northern Republicans, enacted strong laws that permitted military government in the South until new state governments could be put into place. The Court limited some efforts of the federal government to govern by military tribunals. In Ex parte Milligan in 1866 it refused to permit military trials of civilians as long as the civil courts were open. But the Court also upheld other Reconstruction laws and refused to bar President Andrew Johnson from enforcing them. The Court showed great restraint when Congress stripped it of jurisdiction to hear a case challenging the constitutionality of a Reconstruction act. Even though the case was pending, the Court agreed in Ex parte McCardle in 1869 that if Congress limited the Court's jurisdiction according to the Constitution, the Court would be powerless to act. This decision alleviated fears that the Court was determined to rule Reconstruction unconstitutional. By supporting Reconstruction, the Court helped the country recover from the social and economic destruction of the Civil War. By 1870 the Court had to confront the new constitutional issues created by the states' ratification of the 13th, 14th, and 15th amendments to the Constitution. The most pressing issue was: Since these constitutional amendments gave African Americans the right to freedom from slavery, did they also give blacks other civil rights protections? Congress assumed that the amendments did grant African Americans new rights and enacted several laws designed to protect civil rights through the federal courts. These laws seemed to threaten the historic balance between state and federal power, which the Supreme Court was reluctant to upset. In the so-called slaughterhouse cases in 1873, the Court took a narrow view of the 14th Amendment. A broad application of the amendment, the Court reasoned, would make the High Court a "perpetual censor upon all legislation of the states" whenever a civil right was at stake. In this and other decisions, the Court showed that it was unwilling to disrupt the balance of power between state and federal governments despite the 14th Amendment, which commanded change to ensure nationwide racial equality and due process of law. The Court also showed that it was unwilling to disrupt the racial status quo. The Court's failure to make good on the Constitution's promise of equality reflected a widespread persistence of racism in American society and institutions. In the Civil Rights Cases of 1883, the Court ruled that Congress had no authority to impose a national ban on discrimination in public accommodations such as theaters, restaurants, and hotels. The Court did strike down state laws that explicitly discriminated against blacks, as in Strauder v. West Virginia in 1880 when it ruled against juries that excluded blacks. But the Court had backed away from even modest protections by the end of the 19th century. In 1896 the Court in Plessy v. Ferguson upheld the racial segregation of public facilities provided that they were "separate but equal," a notorious position from which it began to retreat only in the 1940s. By the early 20th century, many American citizens and political leaders backed the reforms of the Progressive movement, which advocated limits on large businesses and more rights for workers and consumers. The Supreme Court, however, sharply reined in the efforts of both the state and federal governments to regulate the economy. Strong pressure for national economic regulation led to some victories for Congress, but the Court generally denied Congress the power to break up certain monopolies and take other steps to improve market competition. In addition the Court adopted a doctrine of economic due process that made it more difficult for the government to regulate business and property rights. In 1905, for example, the Court ruled in Lochner v. New York that the state could not regulate the working hours of bakery workers. The Court reasoned that it could invalidate any "unreasonable" interference with the "liberty of contract." Lochner and related cases created substantive due process, a new class of basic constitutional rights that was initially used to overturn minimum wage legislation and trade union protections. The Supreme Court continued to limit state and federal involvement in the economy through the 1920s and into the Great Depression, the economic hard times of the 1930s. The restrictions at first hobbled the efforts of President Franklin D. Roosevelt to enact the New Deal, a program of economic reforms and government projects intended to confront the Depression. Roosevelt tried to get the New Deal through by "packing" the Court--expanding the membership so that he could appoint justices open to his philosophy. Congress refused to expand the size of the Court, but the Court's justices soon eased restrictions on Roosevelt's programs. In a sharp aboutface, the Court sustained far-reaching trade union and workplace regulations in NLRB v. Jones & Laughlin Steel in 1937. The Court soon used the federal commerce power to grant virtually unlimited authority to Congress to regulate whatever affected interstate commerce. The Court also rejected the doctrine of economic due process. By the 1940s, a new set of justices, all but one appointed by Roosevelt, had remade constitutional law dealing with economic matters. D Individual Rights in the First Half of the 20th Century From the end of World War I in 1918 until the 1950s, the Supreme Court slowly but inconsistently expanded individual liberties. Though it upheld convictions of alleged subversives and approved many laws that restricted free speech, the Court also laid the groundwork for a revolution in First Amendment and privacy law. The Court expanded the existing doctrine of substantive due process to include personal rights in the 1923 Meyer v. Nebraska, which struck down a Nebraska ban on the teaching of foreign languages in elementary schools. By applying its notion of substantive due process to social concerns, the Court opened up the possibility that it would one day protect individuals in their more intimate relations. The Court paved the way for expanded civil liberties in the 1925 case Gitlow v. New York, in which it said that the freedoms of speech and press enjoyed 14th Amendment protection against infringement by the state. Under this reasoning, the 14th Amendment "incorporated" most of the ten amendments of the Bill of Rights, and applied those rights to the states. Through this doctrine of incorporation, the Court also began a revolutionary expansion of the rights of the accused. In 1932, for instance, it ruled in Powell v. Alabama that states must provide a fair trial in criminal cases. The Court remained conservative on most racial issues through the 1940s, and continued to deny minorities protection from racial discrimination in housing, employment, voting, and other areas. A low point came in the Court's 1944 decision in Korematsu v. United States, in which it refused to stop the government from holding more than 100,000 Japanese-American citizens in prison camps during World War II (1939-1945). Many critics regard the case as the Supreme Court's worst decision of the 20th century. (In 1988, citing the appalling injustice of the government's actions, Congress apologized and authorized a token payment to the survivors of the camps.) But the Court did note that laws and policies that turn on race would be examined with "utmost scrutiny," a standard that the Court later used to reject many discriminatory laws. Beginning in 1938, the Court decided a series of cases that chipped away at the 1896 Plessy v. Ferguson standard of separate but equal for racially segregated facilities, insisting that the "equal" has as much meaning as "separate." In 1948 the Court invalidated all attempts to enforce racially restrictive covenants--clauses in deeds to land that prohibited owners from selling their property to blacks and other minorities. E The 1950s and 1960s: The Warren Court and Social Change In 1953 President Dwight D. Eisenhower named Earl Warren as chief justice of the Supreme Court. The Warren Court transformed the American legal system, implementing the largest expansion of civil rights and civil liberties in the nation's history. Warren had an immediate impact on the Court, forging unanimous support for the 1954 case Brown v. Board of Education, which ended legalized segregation in public schools. The landmark ruling also launched a legal and political revolution that eventually abolished the shameful system of official racial segregation throughout American society. Although the Court seemed to offer a narrow rationale in Brown for overturning the 1896 Plessy v. Ferguson doctrine of separate but equal, it soon showed a willingness to strike down virtually all racially discriminatory laws. By the time the Court decided in Loving v. Virginia (1967) that Virginia could not ban interracial marriages, it was clear that the Court would use the Equal Protection Clause of the 14th Amendment to bar almost all laws and policies that classified people on the basis of race. The Supreme Court did not stop at striking down discriminatory laws. It also affirmed the power of Congress to guarantee voting rights through strict laws, to require the racial integration of public facilities, and to enact a variety of other policies. Under Chief Justice Warren's leadership, the Court also began to roll back restrictions on freedom of speech and association that previous Courts had endorsed in the early 1950s to fight Communism. By the late 1960s the Court dramatically transformed First Amendment doctrines. In New York Times v. Sullivan in 1964 the Court established a rule that made it far more difficult for public figures to win libel cases against the news media. By 1969, Warren's last year on the Court, the justices were willing to adopt a First Amendment rule in Brandenburg v. Ohio that protected nearly all types of political speech, except that which incited "imminent lawless action." The Warren Court also carved out new protections for people accused of crimes. The Court applied the 4th, 5th, and 6th amendments to the states by incorporating them into the 14th Amendment, providing broad new rights for defendants in criminal cases. In 1961 in Mapp v. Ohio the Court held that evidence seized in violation of the Fourth Amendment must be excluded from all trials. In 1963 it ruled in Gideon v. Wainwright that states must provide anyone accused of a felony with a lawyer to assist in the defense. In 1966 the Court defied growing conservative opposition to its expansion of rights of the accused when it declared in Miranda v. Arizona that suspects had to be advised of their constitutional rights when they were put under arrest. In the Miranda case the Court further ruled that courts could not accept suspects' confessions unless they offered them after the police advised them of their rights. The Warren Court generally denied claims to substantive liberties beyond those specifically named in the Constitution, such as the freedoms of speech and press. In one key decision, however, the Court expanded the substantive due process rights to include a right to privacy. The ruling came in 1965 in Griswold v. Connecticut, in which the Court struck down a Connecticut ban on the use of contraceptives by married couples. The decision led eight years later to the watershed Roe v. Wade, which overturned state prohibitions on abortion. F The Mixed Legacy of the 1970s and 1980s President Richard Nixon replaced retiring Chief Justice Earl Warren with Warren Earl Burger in 1969. By 1972 Nixon had appointed three more justices. Because Nixon had campaigned vigorously against many of the Warren Court's decisions, it seemed likely that his appointments would shift the Court in a more conservative direction. The Court did issue conservative decisions in some areas, but it also continued to build on the Warren Court's legacy of judicial activism. The Supreme Court's most explosive decision in this period came in the 1973 case Roe v. Wade, which ruled state prohibitions on abortion unconstitutional. This decision was based on the right to privacy established by the Warren Court. The Court voted 7 to 2 against outlawing abortion, and three of Nixon's justices, including Burger, sided with the majority. In the decades that followed, the Court addressed abortion in several more cases, but continued to uphold the essential premise of individual privacy in Roe. This conception of privacy regarded the right to an abortion as part of the right of a person to do with her body as she wants. The Constitution creates no such right explicitly, but the Court found one in the substantive due process rights guaranteed by the due process clause of the 14th Amendment. Critics charged that the Court majority had written its own values into the Constitution, insisting that the framers never intended to give the word liberty such a broad meaning. The Burger Court also bolstered women's rights by striking down several laws that discriminated against them based on their sex. The Court reasoned that the Equal Protection Clause of the 14th Amendment prohibited such discrimination. The landmark extension of the Equal Protection Clause to women came in the 1976 case Craig v. Boren, in which the Court ruled that gender-based discrimination must "be substantially related" to important legislative goals. This standard, although less rigid than the "strict scrutiny" test applied to racial discrimination, elevated gender to a protected constitutional category. The case also led the Court to be more receptive to claims from other types of groups that they had faced unconstitutional discrimination. The Supreme Court entered the debate on affirmative action in the 1970s, approving several plans under federal law designed to end discrimination in hiring. In 1978 in the widely discussed reverse-discrimination case Regents of the University of California v. Bakke, the Court upheld the claim of a white applicant to a public medical school that he had been unconstitutionally denied admission solely on the basis of race. Yet in that same case, the sharply divided Court approved the use of race as one of the criteria in selecting applicants. In several later cases, it upheld affirmative action hiring plans designed to foster racial and ethnic diversity in the workplace. It limited affirmative action programs in some others, however. In 2003, in Grutter v. Bollinger, the Court reaffirmed the Bakke decision, ruling that society has a "compelling interest" in assuring racial diversity on college campuses. It was the Court's first major ruling on affirmative action since Bakke. Under Chief Justice Burger, the Supreme Court showed a conservative streak only in cases involving the procedural rights of criminal suspects and defendants. But even in these cases the Court rarely overruled the Warren Court's expansion of these rights. Instead, the Court either refused to extend the logic of the prior cases to new areas, or it limited the scope of the protections that had been granted. In some instances it seemed even more willing to restrict the power of the states. In Furman v. Georgia in 1972, for example, the Court temporarily struck down the death penalty based on the Eighth Amendment's prohibition of cruel and unusual punishment. But the Court soon overturned its moratorium on capital punishment after states enacted laws with safeguards against arbitrary sentencing decisions. G Conservative Inclinations Under Rehnquist The Supreme Court moved in a generally conservative direction after President Ronald Reagan promoted William H. Rehnquist from associate to chief justice in 1986. With three other Reagan appointees usually voting with him, Rehnquist was able to overturn some important precedents. Under Rehnquist, the Court served notice that it would take a dim view of most affirmative action policies. In 1995, for example, it ruled in Adarand Constructors v. Peña that the strict scrutiny test should apply to all race-based legislation, including affirmative action laws that favored disadvantaged groups. The Rehnquist Court also curtailed the possibilities of habeas corpus appeals, making it much more difficult for state prisoners to take appeals on constitutional grounds to the federal courts. The Court continued to limit the procedural rights of individuals accused of crimes and to accord law enforcement officials broad discretion. In the area of personal liberty, in the 1986 case of Bowers v. Hardwick the Court refused to extend the right to privacy and approved a Georgia ban on sodomy. This decision was later overturned in 2003 in Lawrence v. Texas. In State of Washington v. Glucksberg in 1997 the Court determined that the federal constitution does not guarantee an individual the choice to end his or her life and upheld a state law prohibiting assisted suicide. In the politically charged debate over census-taking methods, in 1998 the Court ruled that, for purposes of apportioning congressional seats among the states, federal law prohibited the Census Bureau from supplementing its traditional door-to-door surveys with statistical sampling methods. But during the 1980s and 1990s, the Court also surprised many observers with some relatively liberal opinions. Despite its narrow interpretation of privacy in Bowers v. Hardwick, in 1992 the Court reaffirmed the right to an abortion in Planned Parenthood of Southeastern Pennsylvania v. Casey. Under the doctrine of separation of powers, it decided in the 1988 case of Morrison v. Olson to uphold the federal law permitting the appointment of special prosecutors to investigate federal officials (see Independent Counsel Act). The Court also extended the principle of nondiscrimination on the basis of sex and sexual preference. The Court ruled in United States v. Virginia in 1996 that the Virginia Military Institute, a prestigious public military academy, had to admit women. The Court also staked out potential new ground in Romer v. Evans in 1996 when it rejected an amendment to the Colorado state constitution that politically discriminated against lesbians and gays. However, two years later the Court refused to hear a challenge to a voter initiative that barred the city of Cincinnati, Ohio, from passing legislation to protect gays from discrimination. In 1998 the Court issued a series of rulings regarding sexual harassment that broadly defined an employer's liability (financial responsibility) when supervisory employees harass subordinates. Also that year and in subsequent terms, the Court considered several cases related to the Americans with Disabilities Act (ADA), which prohibits discrimination against people with disabilities. The Court's decisions in these cases narrowed the class of people who may be considered disabled under the ADA, clarified what constitutes discrimination under the law, and limited the ability of disabled state workers to sue states for employment discrimination under the ADA. Under Rehnquist, the Court generally looked unfavorably on federal laws that imposed a burden on the states. In the 1990s and 2000 the Court issued a series of controversial decisions that curtailed federal power and boosted states' rights. In 1992, in New York v. United States, the Court ruled unconstitutional a federal law requiring states to regulate radioactive waste generated within their borders. In 1997, in Printz v. United States, the Court said that the federal government could not compel local law-enforcement officials to conduct background checks of handgun purchasers. In 1999 the Court issued its most sweeping decisions to date on states' rights. In three related cases, the Court decided that states retain a "residuary and inviolable sovereignty" that gives them broad immunity, in both state and federal courts, from lawsuits brought against them under federal law. In these cases--Alden v. Maine, Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board--the Court found that states cannot be sued for violations of federal laws regulating overtime wages, patent infringement, and false advertising. The three cases, each decided by the same 5 to 4 majority, exposed a deep rift between the Court's conservative and liberal members. In 2000 and 2001 the Court continued its shift toward states' rights by ruling that states cannot be sued for violating a federal law barring age discrimination and by shielding states from certain employment-discrimination lawsuits based on the ADA. However, the Court also ruled that Congress has the authority to prohibit states from selling personal information on drivers' licenses. In 2000 the Court became embroiled in one of the closest and most contentious presidential elections in U.S. history. In the hours and days following Election Day, November 7, neither Democratic candidate Al Gore nor Republican candidate George W. Bush could claim victory due to an extremely close race in the state of Florida. In order to gain the 270 electoral votes necessary to capture the presidency, each candidate needed to win the Florida popular vote and thus the state's 25 electoral votes. A mandated machine recount of Florida's votes put Bush in the lead by only hundreds of votes out of about 6 million cast, and Gore requested hand recounts of ballots in four heavily Democratic counties. When some of these counties failed to complete their manual recounts by an election certification deadline, Gore filed an election contest to challenge the official certification of Bush as the winner. On December 8 the Florida Supreme Court ordered a statewide manual recount of undervotes, or ballots on which machines failed to register a vote for president. Bush appealed this decision to the U.S. Supreme Court, and on December 9 the Court, by a 5-to-4 vote, halted these manual recounts while it considered the case. On December 12 the U.S. Supreme Court reversed the Florida court's decision, effectively sealing Bush's victory. Seven of the nine justices found the court-ordered recount unconstitutional. They concluded that the use of different standards by different counties to determine a legal vote violates a voter's right to equal protection--that is, the right for all voters to be treated equally. However, the Court split 5 to 4 on the issue of whether to permit further counting under more uniform standards, with the majority ruling that a recount could not be completed constitutionally before a December 12 deadline for the state to choose its electors. The dissenting justices argued that the Court was wrong to involve itself in a state election dispute and that its split decision risked the credibility of the Court. In 2003 the Court issued two landmark decisions on affirmative action. In Grutter v. Bollinger, the Court upheld an affirmative action program at the University of Michigan Law School designed to increase enrollment of minorities. The ruling reaffirmed its finding in the 1978 Bakke case that the state has a compelling interest in promoting racial diversity in higher education. However, in Gratz v. Bollinger, the Court rejected an affirmative action program used in undergraduate admissions at the University of Michigan. The undergraduate program used a point system to weigh applicants, with large numbers of points automatically awarded to minority applicants. In contrast, the Court found that the law school's admissions policy was "narrowly tailored" and evaluated each applicant as an individual, with race considered as one of many factors. See Affirmative Action. In another landmark 2003 case, Lawrence v. Texas, the Court overturned a law in Texas that criminalized sodomy (oral and anal sex) among gay couples. The Court reversed its 1986 decision in Bowers v. Hardwick that upheld a similar statute in Georgia. Five of the justices found that the Texas sodomy law violated the privacy rights of gays under the Due Process Clause of the Constitution's 14th Amendment, which prohibits states from depriving people of life, liberty, and property. A sixth justice, Sandra Day O'Connor, concurred with the majority but based her ruling on the Equal Protection Clause of the 14th Amendment, saying that the Texas law discriminated because it was aimed exclusively at gays. In 2004 the Supreme Court considered the constitutionality of the government's policies on detaining terrorism suspects. Following the terrorist attacks on the United States on September 11, 2001 (see September 11 Attacks), the U.S. military detained as "enemy combatants" hundreds of foreign nationals who were captured during hostilities in Afghanistan and elsewhere and held at Guantánamo Bay, Cuba. Two U.S. citizens were also classified as enemy combatants. Acting under the authority of the president, the military claimed the right to imprison and interrogate such individuals indefinitely without access to a lawyer or any court. However, in two key cases--Hamdi v. Rumsfeld and Rasul v. Bush--the Court rejected such expansive presidential powers. Although the Court upheld the president's authority to classify both citizens and noncitizens as enemy combatants, it ruled that the government must allow them lawyers and the right to challenge their detention in court. O'Connor wrote in Hamdi: "We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens." In June 2005 the Supreme Court ruled 6 to 3 in Gonzales v. Raich that federal antidrug laws take precedence over state laws authorizing the medical use of marijuana. Voters in 11 states had approved so-called medical marijuana laws. The first was California's Compassionate Use Act in 1996. These laws generally allow patients with diseases such as cancer and acquired immunodeficiency syndrome (AIDS) to grow and use marijuana with a physician's approval for medical purposes. Although the Court's ruling in Gonzales v. Raich did not overturn the state laws, it did override any provisions in those laws exempting patients in possession of medical marijuana from federal prosecution under the Controlled Substances Act (part of the Comprehensive Drug Abuse Prevention and Control Act of 1970). In its majority opinion, the Court held that the commerce clause of the U.S. Constitution gives Congress the power to prohibit the local cultivation and use of marijuana, even if those activities comply with state law for medical use and the drug does not cross state lines. The dissenting justices, including Chief Justice Rehnquist, warned that an expansive interpretation of the commerce clause would allow federal encroachment of states' rights. H Bush Appointments and the Advent of the Roberts Court On July 1, 2005, Associate Justice O'Connor announced her retirement, effective upon the confirmation of a successor. Her resignation created the first opening on the Court in 11 years and provided President Bush his first opportunity to name a Supreme Court justice. Bush named federal appeals court judge John G. Roberts, Jr., to replace O'Connor. However, Chief Justice Rehnquist died prior to the confirmation hearings for Roberts, and Bush decided to renominate Roberts for chief justice. In September 2005 the U.S. Senate voted 78-22 to confirm Roberts, making him the 17th chief justice of the Court. In January 2006 the Senate voted 58-42 to confirm Samuel A. Alito, Jr., to replace O'Connor. The Court returned to the issue of presidential power in the war on terror in June 2006 when it ruled 5 to 3 in Hamdan v. Rumsfeld that special military tribunals or commissions established by President Bush to try the Guantánamo detainees violated a federal statute, the Uniform Code of Military Justice, and the Geneva Conventions. Roberts did not take part in the decision because he had issued a previous ruling in the case, which upheld the Bush administration, while serving as an appeals court judge. The Court rejected the appeals court decision that the Geneva Conventions did not apply because the defendant in the case, Salim Ahmed Hamdan, a suspected al-Qaeda terrorist, was not a party to the Geneva Conventions. Instead the Court, in a majority opinion written by Justice John Paul Stevens, found that Common Article 3 of the Geneva Conventions provided protections for Hamdan, including the right to "judicial guarantees" that the military commissions denied, such as the right to be present at his trial and to be "privy to the evidence against him." The dissenting justices--Alito, Scalia, and Thomas--argued that the Detainee Treatment Act, passed by Congress in December 2005, prevented the Court from hearing the case, an issue that the majority addressed and dismissed. Thomas further argued that the majority decision "openly flouts our well-established duty to respect the Executive's judgment in matters of military operations and foreign affairs." But Justice Stephen G. Breyer in a concurring opinion for the majority noted that the Court's ruling was consistent with earlier decisions that Congress had not issued the president "a blank check" in the war on terror. In April 2007 the Court issued a landmark environmental ruling and its first ruling relating to the issue of global warming. In Massachusetts et al. v. Environmental Protection Agency et al., the Court rejected the Bush administration's argument that the Environmental Protection Agency (EPA) had no business regulating greenhouse gas emissions from automobiles and trucks. According to the EPA, greenhouse gases were not pollutants as defined by the Clean Air Act. In a 5 to 4 decision, the Court found just the opposite: that such gases were pollutants under the law and that the EPA had a responsibility to regulate them unless it could show a scientific basis for refuting their contribution to global warming. The majority opinion was written by Stevens, who was joined by Bader Ginsburg, Breyer, Anthony Kennedy, and David Souter. Chief Justice Roberts wrote the dissent and was joined by Alito, Scalia, and Thomas who argued against the decision on narrow legal grounds. Roberts wrote that the state of Massachusetts and other plaintiffs (a broad coalition of states, cities, and environmental groups) lacked standing in the case. Since the plaintiffs lacked standing, Roberts declared, the courts had no business intervening. Stevens countered the legal argument regarding standing by noting that the original plaintiff, the state of Massachusetts, clearly met the three criteria required, including the requirement to show the risk of injury--in this case, rising sea levels that threaten its coast. In a number of decisions following the confirmations of Alito and Roberts to the Court, Justice Kennedy appeared to emerge as the Court's swing vote, a role previously played by Justice O'Connor. Kennedy proved to be pivotal in deciding a number of cases, aligning himself either with the Court's conservative bloc--made up of Alito, Roberts, Scalia, and Thomas--or its liberal or moderate wing, made up of Bader Ginsburg, Breyer, Stevens, and Souter. For many observers of the Court, Kennedy's new role raised questions about whether the Court would continue to uphold one of its most controversial decisions, the 1973 Roe v. Wade ruling that legalized abortion in the United States for the first time. Those questions were partially answered in April 2007 when the Supreme Court upheld the federal Partial Birth Abortion Ban Act of 2003, which outlaws a medical procedure known as intact dilation and extraction. Previously, in a 2000 decision, Stenberg v. Carhart, the Court had struck down a similar law passed by the Nebraska legislature. Kennedy opposed the Court's ruling in Stenberg v. Carhart, which was written by O'Connor, but in 2007 he suddenly found himself in the majority. In Gonzales v. Planned Parenthood and Gonzales v. Carhart, the Court upheld for the first time since Roe a ban on an abortion procedure. In his majority opinion Kennedy argued that the decision actually followed precedent because the Court's ruling in 2000 focused on the vagueness of the Nebraska law and its failure to address exceptions for safeguarding a woman's health. These issues were addressed, Kennedy argued, in the congressional legislation of 2003 because its definition of partial birth abortion was more exact and it allowed for the procedure to be performed in the event of a threat to a pregnant woman's life. Nevertheless, a stinging dissent by Bader Ginsburg argued that the majority opinion was openly "hostile" to the right to an abortion and disregarded previous precedent. Bader Ginsburg argued that there was a significant difference between an exemption for a woman's health and an exemption to protect her life. Supporters of the right to an abortion warned that the Court's ruling opened the way for a reversal of Roe v. Wade. Contributed By: Jethro K. Lieberman Microsoft ® Encarta ® 2009. © 1993-2008 Microsoft Corporation. All rights reserved.

« The Constitution does not specify formal qualifications for membership on the Supreme Court. From the beginning, though, justices have all been lawyers, and mostpursued legal and political careers before serving on the Court. Many justices served as members of Congress, governors, or members of the Cabinet. One president,William Howard Taft, was later appointed chief justice. Some justices came to the Court from private law practice, and others were appointed from positions as lawprofessors. Many justices appointed in the second half of the 20th century had experience in the United States courts of appeal and other lower courts. Only onejustice, Charles Evans Hughes, was confirmed as a Supreme Court justice twice. President Taft appointed Hughes, then governor of New York, to the Court in 1910.Hughes gave up his Court seat in 1916 to run for president, but he lost in a close race against Woodrow Wilson. In 1930 President Herbert Hoover returned Hughes tothe Court as chief justice. VII APPOINTMENT AND CONFIRMATION Justices of the Supreme Court are appointed by the president and must be confirmed by a majority vote in the Senate. The president usually chooses the nomineescarefully to minimize the possibility that the justice will veer far from the administration’s own agenda after he or she is confirmed. The president must also be careful toselect a nominee with strong chances for Senate confirmation, otherwise the administration may lose prestige in a bruising confirmation battle with the Senate.Presidents often try to secure Senate support by balancing the Court’s geographic and regional background. Many 20th-century presidents have also tried to balancethe Court’s religious, racial, ethnic, and gender makeup. Only Protestants served on the Court until 1836, when the Senate confirmed President Andrew Jackson’s nomination of Roger B. Taney, a Catholic. Since then there hasalmost always been a Catholic on the Court. Louis D. Brandeis was the first Jewish justice in 1916. Civil rights lawyer Thurgood D. Marshall became the first AfricanAmerican justice in 1967. President Ronald Reagan appointed the first woman, Sandra Day O’Connor, in 1981. The first Italian American, Antonin Scalia, came to theCourt in 1986. In the late 1990s, the Court consisted of four Protestants, three Catholics, and two Jews; seven men, one of whom was black, and two women. Two werefrom Arizona (Chief Justice William H. Rehnquist and Sandra Day O’Connor), and one each were from California (Anthony M. Kennedy), the District of Columbia (Scalia),Georgia (Clarence Thomas), Illinois (John Paul Stevens), Massachusetts (Stephen G. Breyer), New Hampshire (David H. Souter), and New York (Ruth Bader Ginsburg). On average, the Senate rejects about 20 percent of all nominees to the Supreme Court. The president’s choice must face questioning by the Senate JudiciaryCommittee, which then makes a recommendation to the Senate as a whole. The Senate began asking nominees to appear before the Judiciary Committee only in 1925,when President Calvin Coolidge’s nomination of Harlan Fiske Stone was in jeopardy. Felix Frankfurter, a nominee of President Franklin Delano Roosevelt, testified beforethe Senate Judiciary Committee in 1939. Such appearances before the committee became accepted practice in 1955, when John M. Harlan testified. Confirmation hearings are sometimes polite, quiet affairs, but some have been intensely political dramas that have gripped the nation. In 1987, for example, the Senateheld 12 days of rancorous hearings into President Ronald Reagan’s nomination of Judge Robert Bork. Although Bork had strong qualifications, his conservative views ledmany groups throughout the country to oppose his nomination. Some senators charged that he had undergone a “confirmation conversion”—contradicting his earlierpublished views to secure appointment. The full Senate defeated the nomination by a vote of 58 to 42. In 1991 President George Bush nominated Judge ClarenceThomas to replace the ailing Thurgood Marshall. An initial debate over his qualifications gave way to a nationally televised drama over a leaked accusation by OklahomaUniversity Law School Professor Anita Hill that Thomas had sexually harassed her. Thomas bitterly denied the allegations, charging that he was the victim of a “high-techlynching.” The Senate eventually confirmed him by a vote of 52 to 48, the second closest vote in history. VIII REMOVAL FROM OFFICE Justices serve lifetime appointments. Under the Constitution they can be removed from the Court only by first being impeached (accused) by a majority vote of the U.S.House of Representatives and then convicted by a two-thirds vote of the Senate. There is no precise standard for determining whether a justice has committed animpeachable offense, though the consensus is that removal should be for criminal or ethical lapses, not for partisan political reasons. No justice has ever been removedthrough this process, and only one justice of the Supreme Court has ever been impeached. In 1805 Justice Samuel Chase was impeached in the House by his politicalenemies, but the Senate failed to convict when it became apparent that Chase’s opponents were after him not because he had committed any wrongdoing but becausethey disagreed with his decisions. The possibility of impeachment may have been a factor in the resignation of Justice Abe Fortas, who left the Court in 1969 afterallegations surfaced that he had accepted a questionable fee from a private foundation. Some conservative groups rallied for the removal of Chief Justice Earl Warren inthe 1960s, but their efforts failed. In the wake of the controversy over Abe Fortas’s financial practices, the Court became more restrained in its public activities. Once confirmed to the Court, justices tryto ensure that their investments and outside income do not bring their integrity into question. Common practice now dictates that justices also remove themselves frompolitics, refraining from speaking out about controversial issues or pending legislation. The justices can make public speeches, but these are usually confined to subjectsrelated to the law in general and to the federal court system. In these and other questions of judicial ethics the Court usually follows the American Bar Association (ABA)Code of Judicial Conduct, although these rules are not binding on the Court. IX THE WORK OF THE COURT The Supreme Court hears only a tiny fraction of the cases that come before it. When the Court declines to hear a case, the decision of the lower court stands as thefinal word on the case. Each year the Court receives thousands of petitions to hear cases, but it usually decides to consider only a few. In 1995, for example, the Courthad 7,565 cases on its docket, and the justices heard oral arguments in just 90 and issued signed opinions—written explanations of its decisions—in only 75. Ten yearsearlier the Court’s docket had been much smaller, consisting of 5,185 cases, although it issued signed opinions in 151 cases. The growth in petitions has many causes: a larger population, a more complex economy, and the proliferation of business and other relationships. Adding to the Court’sworkload is a steady growth in congressional and state legislation that requires judicial interpretation, and an increasing number of constitutional and other issues thatcan be reviewed in the federal courts. By law the Court’s term begins the first Monday in October and usually runs through the end of June, after disposing of all cases that have been argued during theterm. On rare occasions, when a critical case has arisen, the Court has heard arguments and issued decisions in the summer; for example, in 1974 the Court issued itsdecision in United States v. Nixon, the Watergate tapes case, on July 24. The Court does not meet continuously in formal sessions during its nine-month term. Instead, the Court divides its time into four separate but related activities. First,some time is allocated to reading through the thousands of petitions for review of cases that come annually to the Court. This time is not formally assigned but isavailable during the summer and during those periods when the Court is not sitting to hear cases. Second, the Court allocates blocks of time for oral arguments—thelive discussion in which lawyers for both sides present their clients’ positions to the justices. From October through April, the justices meet in blocks of two consecutiveweeks on Mondays, Tuesdays, and Wednesdays to hear oral arguments. These public sessions run from 10 AM to 3 PM, with a one-hour lunch recess, giving the Court time to hear from lawyers in four cases each day. During the weeks of oral arguments the Court sets aside its third allotment of time, for private discussions of how each justice will vote on the cases they have just »

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