The United States
Supreme Court
William Funk
Robert E. Jones Professor of Law
Lewis & Clark Law School
Federal and State Judicial
Systems




Federal System
50 State Systems
The Supreme Court of State Supreme
the United States
Court
(SCOTUS)
12 Courts of Appeals State Court of
Appeals
Federal District Courts State Trial Courts
Article III, Section 1
“The judicial power of the United States
shall be vested in one Supreme Court, and
in such inferior courts as the Congress
from time to time ordain and establish.”
Article III, Section 2, clause 1
“The judicial power shall extend to all cases . .
. arising under this Constitution, the laws of
the United States, and treaties made . . .
under their authority; to all cases affecting
ambassadors. . . ; to all cases of admiralty
and maritime jurisdiction; to controversies to
which the United States shall be a party; to
controversies between two or more states;
between citizens of different states; . . . and
between a state, or citizens thereof, and
foreign states, citizens or subjects.”
Article III, Section 2, clause 2

Supreme Court Original Jurisdiction:



Cases affecting ambassadors
Cases to which a state is a party
Supreme Court Appellate Jurisdiction:

Cases within the “judicial power of the United
States” as established by Congress
The Current United States
Supreme Court
The Future Supreme Court?
Supreme Court Practice

Three routes to Supreme Court:






Original Jurisdiction
Mandatory Appeal
Petition for Certiorari
Original Jurisdiction – disputes between
states – one or two cases per year
Mandatory Appeal – one or two cases per
year
Petition for Certiorari – the remainder of all
cases
Certiorari Practice


A petition is filed.
The Court decides whether to hear case




Rule of 4
Parties file briefs
Parties have oral argument – one half hour each
The entire Court hears and later decides the case



An opinion for the Court is assigned, drafted, and
circulated among the justices.
Concurring and dissenting opinions are written.
The final opinions are then released to the public.
Supreme Court Jurisdiction

The “case” or “controversy” requirement


Advisory Opinions not allowed
Standing
Injury
 Causation
 Remedy

Examples

Army Surveillance
5-4 No standing (1972)


CIA Expenditures


5-4 No standing (1974)
Global Warming

5-4 Standing (2007)
Environmental Standing



Aesthetic or Recreational Injury – “walk in
the woods”
“Reasonable fear” as injury
Increased, but still small, statistical risk as
injury
Lessons?




Lack of agreement as to what is required
to justify judicial action
Lack of agreement stems from differences
in the view of the role courts are to play in
American government
Those who see a broader role are called
“liberals”
Those who see a narrower role are called
“conservatives”
The Court Today

Four reliable conservatives





Four reliable liberals





Chief Justice John Roberts
Justice Antonin Scalia
Justice Clarence Thomas
Justice Samuel Alito
Justice
Justice
Justice
Justice
John Paul Stevens
David Souter
Ruth Ginsburg
Stephen Breyer
One unreliable vote

Justice Anthony Kennedy
“Human Rights” v.
“Constitutional Rights”



In the United States we do not speak of
“human rights” with respect to persons’
rights in the United States.
We speak of “statutory rights” or
“constitutional rights,” not “human rights”
“International human rights” is not a judicial
concept in the US, and domestic courts
generally do not recognize international law
as applicable in domestic courts.
Negative v. Positive Rights

Positive rights are rights that require the
government to do something


Negative rights are rights that prohibit the
government from doing something


For example, the Basic Law’s requirement for the
state to protect human dignity, marriage, and the
family.
For example, the First Amendment prohibits any law
abridging the freedom of speech.
The U.S. Constitution does not contain any
“positive” rights; it only contains “negative” rights.
Constitutional Rights

Enumerated Rights


Freedom of speech; Freedom of religion; Right to keep
and bear arms; Freedom from unreasonable searches;
Freedom from compelled self-incrimination; In a criminal
tiral the right to a jury trial, the right to a public trial, and
the right to have an attorney; Freedom from cruel and
unusual punishment; Equal protection of the laws.
Issues of interpretation: e.g.,



Does the freedom from cruel and unusual punishment
prohibit the death penalty?
Does the freedom of speech protect “hate speech”?
Originalism v. Purposive Interpretation
Constitutional Rights


Unenumerated Rights
Pursuant to the “Due Process” clauses of the 5th
and 14th Amendments


No person is to be deprived of life, liberty, or property without
due process of law
Examples:





Griswold v. Connecticut (1965) – the right to take contraceptives
Roe v. Wade (1973) – a woman’s right to an abortion
Troxel v. Granville (2000) – right for parents to raise children
Lawrence v. Texas (2003) – right to engage in non-commercial
intimate acts in private
BUT, no right to have a doctor assist you in terminating your life
even if you are terminally ill.
Basis for finding an
unenumerated right



Implicit in the concept of ordered liberty
Deeply rooted in the Nation's history and
tradition
Fundamental right in contemporary
civilized societies

This basis is not accepted by “conservative”
members of the Court, because it appears to
empower judges to exercise their individual
views.
Federalism

History




Articles of Confederation (1781)
Constitutional Convention (1787)
Constitution takes certain powers from the
states and places them in the federal
government
States do not receive their powers from
the Constitution
Constitutional Text regarding
Federalism

Article I explicitly prohibits states from doing
certain things.



Because the new federal government was to do them
– negotiate with foreign nations, create a monetary
system or a bankruptcy system, or maintain an army
or navy.
Article VI contains the Supremacy Clause, stating
that the Constitution and laws of the United States
are the supreme law of the land notwithstanding
the constitution and laws of the states.
The 10th Amendment reserves to the states the
powers not delegated to the United States.
What powers does the federal
government have?


No explicit text for environmental regulation,
worker and consumer health and safety
regulation, criminalizing drug possession or
terrorist activity.
Reliance on the “Commerce Clause” and the
“Necessary and Proper Clause”


Authority “to regulate commerce with foreign nations,
and among the several states, and with the Indian
tribes.”
Authority “to make all laws . . . necessary and proper
for carrying into execution the . . . powers vested in .
. . the government of the United States.”
Commerce Clause
Jurisprudence


Since the 1930s, the Court has broadly
read the Commerce Clause to justify all of
these activities.
In the 1990s, the conservatives on the
Court found two cases beyond Congress’s
power.



US v. Lopez – Gun Free School Zones Act
US v. Morrison – Violence Against Women Act
Nevertheless, the broad reading remains.
Regulating the States

Even if Congress might be able to regulate
a subject matter generally under the
Commerce Clause,

Can it regulate the states themselves? Yes.


E.g., hours and wages laws of employees.
Can it require the states to regulate the
matter as agents of the federal government?
No, but. . . .

E.g., Clean Air Act
Separation of Powers



The individual and relative powers of the
President, the Congress, and the Judiciary.
Disputes often arise given the nature of
the American system
This is a particularly difficult area for the
Court, because sometimes it has an
interest involved and often its decision will
have significant structural impacts on the
government.
Conclusion