Chapter 16
Sotomayor, Breyer, Alito, Kagen
Thomas, Scalia, Roberts, Kennedy, Ginsburg
Supreme Court Judges
Chief Justice – John Roberts, Bush 2005 (Harvard Law
1979)
Associate Justices
Antonin Scalia, Reagan 1982 (Harvard Law 1960)
Anthony Kennedy, Reagan 1988 (Harvard Law 1961)
Clarence Thomas, Bush 1991 (Yale Law 1974)
Ruth Bader Ginsburg, Clinton 1993 (Columbia Law 1959)
Stephen Breyer, Clinton 1994 (Harvard Law 1964)
Samuel Alito, Bush 2006 (Yale Law 1975)
Sonia Sotomayor, Obama 2009 (Yale Law 1979)
Elena Kagan, Obama 2010 (Harvard Law 1986)
Both systems have three tiers (established
by the Judiciary Act of 1789):
 District Court (trial courts)-litigation
begins and courts hear the facts of the
case at hand (original jurisdiction)
 appellate
courts--decide questions of law,
not fact (appellate jurisdiction)
 high
or supreme courts (original &
appellate jurisdiction).
 Allows
the courts to rule on the
constitutionality of laws, giving the court
the power to strike down or reinforce
policy
 Judges
have used this power sparingly.
 The
power has only been used about 140
times to strike down acts of Congress.
 It
has been used more frequently (over
1200 times) to invalidate acts of state
legislatures.
 Participants
in the Judicial System
 Litigants



Plaintiff- the party bringing the charge.
Must have standing to sue - sufficient
legal reason to bring charges.
Defendant- the party being charged
Jury- the people (normally 12) who often
decide the outcome of a case
President
Senators
Dept. of
Justice
ABA
Interest Groups
Senate
Jud. Comm.
Senate

Justices are appointed (not elected) to serve life terms
subject only to good behavior. Senate must confirm all
nominations by majority vote (Advice and consent)

Salaries of justices cannot be reduced

They set their own agenda based on the cases they
select

The public has limited access to Court proceedings

Senatorial courtesy – tradition started by G.Washington
to seek approval from local senators over locally
appointed judges  http://www.youtube.com/watch?v=gasBJMNUiHg
 President
appoints all judges
 Senate must confirm appointed judges
 Congress has the power to impeach judges
 They
rely on the others (executive
branch/states) to enforce their rulings.
 Congress
may alter the structure of the
court system (# of courts and justices)
 Congress may amend the Constitution if the
Courts find a law unconstitutional
 Ex. Income tax originally found
unconstitutionally so Congress added 16th
amendment

Adversarial system – decision must be
made between 2 choices, and court can’t
bring up an issue

Justiciable dispute – must judge actual
situations, not hypothetical situations

Political question – absence of law to rule
on a case and the court calls on the
Congress to create law
Ex. – gay marriage – equal protection
Chapter 16 part 2
US Supreme Court




2009/2010 – Argued 84 cases, decided 92
Hear appeals – writ of certiorari (to be informed of) –
an appellate court order to bring the case before them
then the court has discretion on whether or not to hear
the appeal.
Rule of 4 – 4 justices needed to agree to hear a case
from a lower court.
Chief Justice John Roberts

In recent terms, there have been between 8,000 and 10,000
cases appealed to the Supreme Court each year

Out of approx. 9,000 petitions in the average year, about 7075 are granted (0.8%)
Paid Petitions
In forma pauperis
Petitions that pay the $300
filing fee
litigants who can’t pay the
filing fee (often prisoners)
~20% of petitions
~80% of petitions
3-4% granted
0.2% granted
Make up 85-90% of
docket
Make up 10-15% of
docket
•
The Chief Justice generates a discuss list,
based on memos prepared by clerks.
Other justices may add to the list.
•
All cases generated by Solicitor General
All (head Supreme Court lawyer for
federal government,#4 in Justice Dept)
are automatically discussed
•
So are all Capital Cases (no such thing as
a “frivolous case” here)
Important
Multiple amicus briefs (friend of the court) at cert
stage
Affects large number of people
 Unique/one of a kind case this Court must decide
 Interest Groups become involved to influence
decisions by submitting Amicus Curiae briefs to
influence the Supreme Court (NAACP)
 Bring new points of view to the case
 Federal government can also submit them.

Ranking tends to be:
#1 - U.S. Solicitor General
#2 - Corporations
#3 - States
#4 - Organized groups
#5 -- Individuals
Marbury v. Madison
 Court interpretes
 Philosophy of the
individual judges
determine the answer
to the legal questions
 Ultimate authority
resides in the
U.S. Supreme Court

The Court Room
Who’s philosophy matters?
Sotomayor, Breyer, Alito, Kagen
Thomas, Scalia, Roberts, Kennedy, Ginsburg
 Example case:
They follow the “original
Plessey v.
intent” of the framers.
 Go to great lengths to defer to
Ferguson (1896)
the legislature (or executive)
 Stating that the
because they represent the
“separate but
majority of Americans.
equal” is okay.
 Respect stare decisis, the
 Let the legislatures
principle of upholding
decide how to
established precedent handed
handle it.
down by past judges.

Justice Scalia video
Example case
 Courts
believe it is
their duty to uphold
liberties because the
leg. and exec.
branches won’t
always do that.
 Believe in “case
law.”

Courts making new
public policies.
 Brown
v. Board of
Education (1954)

Overturned the
precedent set in
Plessey.

Expected the states
to act upon their
ruling

Brown II (1955):
“…with all
deliberate speed.”
Justices
read briefs pertaining to
the case.
Hear oral arguments (30 minutes
each side)
Meet to discuss cases and vote on
decision
Write and announce opinions
 When
an opinion is written (a decision), it
often takes months and many drafts
 Majority
Opinion – justices in the majority
must draft an opinion setting out the
reasons for their decision (need 5 votes)
 Concurring
Opinion – justices who agree
for other reasons can give their opinion
 Dissenting
Opinion – justices who disagree
with the opinion write their side
 “John
Marshall has rendered his decision;
now let him enforce it!” – Andrew Jackson
 “All

deliberate speed” – Chief Earl Warren
10 years after Brown only 1% of Southern schools
were desegregated
 Court
must rely on branches, states, and
officials to enforce its ruling

A Historical Review
 John
Marshall (1801-1835) and the Growth of
Judicial Review – Marbury v. Madison
 The
Warren Court (1953-1969) – most active
Supreme Court in shaping public policy in
areas of desegregation & rights of the
accused. Example Miranda v. Arizona
 The
Burger Court (1969 - 1986)– Nixon
chose Burger as the chief justice. This
court was more conservative than the
liberal Warren Court.
 Example
– Roe v. Wade

A Historical Review
 The Rehnquist Court (1986-2005) – has
slowly chipped away at liberal
decisions such as those regarding
defendants’ rights, abortion, and
affirmative action.
 Example: Bush v. Gore
 The
right of the President to
confidentiality refuse to disclose
information to Congress or a court has
been claimed by Presidents
throughout American History.
 Executive
Privilege has been limited
by the Supreme Court
 Example:
US v. Nixon
President
Roosevelt (FDR)
attempted to increase the size of
the Supreme Court.
He
wanted to add six new judges to
make a total of 15. (current judges
did not support his new deal
programs “nine old men.”)
Congress
didn’t approve.