The Supreme Court

I.BackgroundA.Only court mentioned in Const. (Article III)B.Consists of 8 Associate Justices and 1 Chief Justice

1.Number of Justices is set by Congress (Judiciary Act of 1869)2.When position of Chief Justice is vacant, the President can

appoint someone already on the Court (e.g., Rehnquist; 5 of 17) or someone not on the Court (e.g., Roberts)

C.Highest court in the land—the court of last resortD.Key powers

1.Power of judicial review (established by Marbury v. Madison, 1803)

2.Power to overrule earlier Supreme Court decisions (e.g., Brown v. Board overturning Plessy v. Ferguson)

II. How cases reach the Supreme CourtA.Thousands of requests are made for Supreme Court

decisions, but relatively few requests are granted (~80-90 per year)

B.Rule of 4: In order for the Court to decide a case, 4 Justices must agree to do so. Denying a decision may mean any number of things:

● Case lacks a federal issue● Party lacks standing (sufficiently harmed by the law)● Court agrees with a lower court● Case is a “political hot potato” that the Court does not want to

touch (e.g., “same-sex marriage”)C.Party requests a Supreme Court decision by filing a writ of

certiorari (“to be made certain”), lower case to be reviewedD.When the Justices accept a case, they decide whether to

ask for more information and oral arguments from the attorneys or whether to decide the case quickly on the basis of the attorneys briefs (Quorum of 6)

III. The Supreme Court at workA.Term begins on first Monday in October and

continues until the end of JuneB.Hears cases from Monday-Thursday. Quorum of 6C.Before oral arguments, the Justices read the

attorney’s briefsD.Justices also read amicus curiae (“friend of the court”)

briefsE.Justices hear 30 minute oral arguments from each

sideF. At the Friday conference, Justices discuss the casesG.Simple majority needed for decisions. In case of ties,

previous court decision stands

H.Written opinions:● Types

a.Unanimous: expresses opinion of all nine Justices. ~1/3 of the cases are decided by a 9-0 vote (Brown v. Board)

b.Majority: expresses opinion of majority (Roe v. Wade)c.Dissenting: expresses opinion of minority. If the Court later

overturns itself, it may draw upon a minority opinion for its reasoning

d.Concurring: written by a Justice who agrees with majority’s conclusions, but for different reasons

● Assigning of opinionsa.If Chief Justice voted with the majority, he assigns someone

in the majority to write the opinionb.If the C.J. is in the minority, the most senior Justice among

the majority assigns the opinion

3.Purpose of opinionsa.Communicate the Court’s reasoning to the

publicb.Establish precedents for future cases—

stare decisis (establishing precedent)c.Drop “hints” that Congress, the states, or the

President should take certain actions (setting policy)

IV. Possibility of evading Court decisions: Amending the Constitution

A.When a decision is made, it is “remanded” to a lower court to carry out the Supreme Court’s decision. The lower court will have a certain amount of leeway in doing this.

B.Executive branch, or state and local governments may simply not carry it out (e.g., desegregation)

VI.Voting blocs on the current Supreme Court

A.Liberals1. Elena Kagan (Obama appointee, 2010, 54)

2. Sonia Sotomayor (Obama, 2009, 60)

3. Ruth Bader Ginsburg (Clinton, 1993, 81)

4. Stephen Breyer (Clinton, 1994, 77)

B.Conservatives1. Chief Justice John Roberts (Bush 43, 2005, 59)

2. Antonin Scalia (Reagan, 1986, 78)

3. Clarence Thomas (Bush 41, 1991, 66)

4. Samuel Alito (Bush 43, 2006, 63)

C.Swing/moderate conservative1. Anthony Kennedy (Reagan, 1987, 78)