Supreme Court of the United States

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Supreme Court of the United States
Seal of the United States Supreme Court.svg
Supreme Court of the United States
38°53′26″N77°00′16″W / 38.89056°N 77.00444°W / 38.89056; -77.00444
EstablishedMarch 4, 1789;235 years ago (1789-03-04) [1]
Location1 First Street, NE, Washington, D.C., U.S.
Coordinates 38°53′26″N77°00′16″W / 38.89056°N 77.00444°W / 38.89056; -77.00444
Composition method Presidential nomination with Senate confirmation
Authorized by U.S. Constitution
Judge term length Life tenure
Number of positions9, by statute
Chief Justice of the United States
Currently John Roberts
Since September 29, 2005

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on questions of U.S. constitutional or federal law. It also has original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." [2] The court holds the power of judicial review: the ability to invalidate a statute for violating a provision of the Constitution. It is also able to strike down presidential directives for violating either the Constitution or statutory law. [3]


Established by Article Three of the United States Constitution, the composition and procedures of the Supreme Court were originally established by the 1st Congress through the Judiciary Act of 1789. The court consists of nine justices: the chief justice of the United States and eight associate justices, and the justices meet at the Supreme Court Building in Washington, D.C. Justices have lifetime tenure, meaning they remain on the court until they die, retire, resign, or are impeached and removed from office. [3] When a vacancy occurs, the president, with the advice and consent of the Senate, appoints a new justice. Each justice has a single vote in deciding the cases argued before the court. When in the majority, the chief justice decides who writes the opinion of the court; otherwise, the most senior justice in the majority assigns the task of writing the opinion.

The Supreme Court receives on average about 7,000 petitions for writs of certiorari each year, but grants only about 80. [4]


The Royal Exchange, New York City, the first meeting place of the Supreme Court The-Old-Royal-Exchange-building.jpg
The Royal Exchange, New York City, the first meeting place of the Supreme Court
The court lacked its own building until 1935. From 1791 to 1801, it met in Philadelphia's City Hall, before moving to the Capitol Building in Washington, D.C. Old City Hall-Supreme Court Front.jpg
The court lacked its own building until 1935. From 1791 to 1801, it met in Philadelphia's City Hall, before moving to the Capitol Building in Washington, D.C.

It was while debating the separation of powers between the legislative and executive departments that delegates to the 1787 Constitutional Convention established the parameters for the national judiciary. Creating a "third branch" of government was a novel idea[ citation needed ]; in the English tradition, judicial matters had been treated as an aspect of royal (executive) authority. Early on, the delegates who were opposed to having a strong central government argued that national laws could be enforced by state courts, while others, including James Madison, advocated for a national judicial authority consisting of tribunals chosen by the national legislature. It was proposed that the judiciary should have a role in checking the executive's power to veto or revise laws.[ citation needed ]

Eventually, the framers compromised by sketching only a general outline of the judiciary in Article Three of the United States Constitution, vesting federal judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." [5] [6] [ better source needed ] They delineated neither the exact powers and prerogatives of the Supreme Court nor the organization of the judicial branch as a whole.[ citation needed ]

The 1st United States Congress provided the detailed organization of a federal judiciary through the Judiciary Act of 1789. The Supreme Court, the country's highest judicial tribunal, was to sit in the nation's capital and would initially be composed of a chief justice and five associate justices. The act also divided the country into judicial districts, which were in turn organized into circuits. Justices were required to "ride circuit" and hold circuit court twice a year in their assigned judicial district. [7] [ non-primary source needed ]

Immediately after signing the act into law, President George Washington nominated the following people to serve on the court: John Jay for chief justice and John Rutledge, William Cushing, Robert H. Harrison, James Wilson, and John Blair Jr. as associate justices. All six were confirmed by the Senate on September 26, 1789; however, Harrison declined to serve, and Washington later nominated James Iredell in his place. [8] [ non-primary source needed ]

The Supreme Court held its inaugural session from February 2 through February 10, 1790, at the Royal Exchange in New York City, then the U.S. capital. [9] A second session was held there in August 1790. [10] The earliest sessions of the court were devoted to organizational proceedings, as the first cases did not reach it until 1791. [7] When the nation's capital was moved to Philadelphia in 1790, the Supreme Court did so as well. After initially meeting at Independence Hall, the court established its chambers at City Hall. [11]

Early beginnings

John Marshall, chief justice from 1801 to 1835 Chief Justice John Marshall.jpeg
John Marshall, chief justice from 1801 to 1835

Under chief justices Jay, Rutledge, and Ellsworth (1789–1801), the court heard few cases; its first decision was West v. Barnes (1791), a case involving procedure. [12] As the court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two). [13] However, Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789. [14] The court lacked a home of its own and had little prestige, [15] a situation not helped by the era's highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment. [16]

The court's power and prestige grew substantially during the Marshall Court (1801–1835). [17] Under Marshall, the court established the power of judicial review over acts of Congress, [18] including specifying itself as the supreme expositor of the Constitution ( Marbury v. Madison ) [19] [20] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee , McCulloch v. Maryland , and Gibbons v. Ogden . [21] [22] [23] [24]

The Marshall Court also ended the practice of each justice issuing his opinion seriatim , [25] a remnant of British tradition, [26] and instead issuing a single majority opinion. [25] Also during Marshall's tenure, although beyond the court's control, the impeachment and acquittal of Justice Samuel Chase from 1804 to 1805 helped cement the principle of judicial independence. [27] [28]

From Taney to Taft

The Taney Court (1836–1864) made several important rulings, such as Sheldon v. Sill , which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. [29] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford , [30] which helped precipitate the American Civil War. [31] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution [24] and developed the doctrine of substantive due process ( Lochner v. New York ; [32] Adair v. United States ). [33] The size of the court was last changed in 1869, when it was set at nine.

Under the White and Taft Courts (1910–1930), the court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states ( Gitlow v. New York ), [34] grappled with the new antitrust statutes ( Standard Oil Co. of New Jersey v. United States ), upheld the constitutionality of military conscription ( Selective Draft Law Cases ), [35] and brought the substantive due process doctrine to its first apogee ( Adkins v. Children's Hospital ). [36]

New Deal era

The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935 United States Supreme Court Building, July 21, 2020.jpg
The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935
The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies. Erich Salomon - The Supreme Court, 1937.jpg
The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies.

During the Hughes, Stone, and Vinson courts (1930–1953), the court gained its own accommodation in 1935 [37] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin D. Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn , United States v. Darby , and United States v. Butler ). [38] [39] [40] During World War II, the court continued to favor government power, upholding the internment of Japanese Americans ( Korematsu v. United States ) and the mandatory Pledge of Allegiance ( Minersville School District v. Gobitis ). Nevertheless, Gobitis was soon repudiated ( West Virginia State Board of Education v. Barnette ), and the Steel Seizure Case restricted the pro-government trend.

The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties. [41] It held that segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment ( Brown v. Board of Education , Bolling v. Sharpe , and Green v. County School Bd. ) [42] and that legislative districts must be roughly equal in population ( Reynolds v. Sims ). It recognized a general right to privacy ( Griswold v. Connecticut ), [43] limited the role of religion in public school, most prominently Engel v. Vitale and Abington School District v. Schempp , [44] [45] incorporated most guarantees of the Bill of Rights against the states, prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright (right to appointed counsel), [46] [47] and required that criminal suspects be apprised of all these rights by police ( Miranda v. Arizona ). [48] At the same time, the court limited defamation suits by public figures ( New York Times Co. v. Sullivan ) and supplied the government with an unbroken run of antitrust victories. [49]

Burger, Rehnquist, and Roberts

Justices of the Supreme Court with President George W. Bush (center-right) in October 2005. The justices (left to right) are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer Supreme Court October 2005.jpg
Justices of the Supreme Court with President George W. Bush (center-right) in October 2005. The justices (left to right) are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer

The Burger Court (1969–1986) saw a conservative shift. [50] It also expanded Griswold's right to privacy to strike down abortion laws ( Roe v. Wade ) [51] but divided deeply on affirmative action ( Regents of the University of California v. Bakke ) [52] and campaign finance regulation ( Buckley v. Valeo ). [53] It also wavered on the death penalty, ruling first that most applications were defective ( Furman v. Georgia ), [54] but later that the death penalty itself was not unconstitutional ( Gregg v. Georgia ). [54] [55] [56]

The Rehnquist Court (1986–2005) was known for its revival of judicial enforcement of federalism, [57] emphasizing the limits of the Constitution's affirmative grants of power ( United States v. Lopez ) and the force of its restrictions on those powers ( Seminole Tribe v. Florida , City of Boerne v. Flores ). [58] [59] [60] [61] [62] It struck down single-sex state schools as a violation of equal protection ( United States v. Virginia ), laws against sodomy as violations of substantive due process ( Lawrence v. Texas ) [63] and the line-item veto ( Clinton v. New York ) but upheld school vouchers ( Zelman v. Simmons-Harris ) and reaffirmed Roe's restrictions on abortion laws ( Planned Parenthood v. Casey ). [64] The court's decision in Bush v. Gore , which ended the electoral recount during the 2000 United States presidential election, remains especially controversial with debate ongoing over the rightful winner and whether or not the ruling should set a precedent. [65] [66] [67] [68]

The Roberts Court (2005–present) is regarded as more conservative and controversial than the Rehnquist Court. [69] [70] [71] [72] Some of its major rulings have concerned federal preemption ( Wyeth v. Levine ), civil procedure ( TwomblyIqbal ), voting rights and federal preclearance ( Shelby CountyBrnovich ), abortion ( Gonzales v. Carhart and Dobbs v. Jackson Women's Health Organization ), [73] climate change ( Massachusetts v. EPA ), same-sex marriage ( United States v. Windsor and Obergefell v. Hodges ), and the Bill of Rights, such as in Citizens United v. Federal Election Commission and Americans for Prosperity Foundation v. Bonta (First Amendment), [74] HellerMcDonaldBruen (Second Amendment), [75] and Baze v. Rees (Eighth Amendment). [76] [77]


Nomination, confirmation, and appointment

John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice John Roberts Confirmation Hearings.jpg
John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice

Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, such as age, citizenship, residence or prior judicial experience, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose. [78] [79] [80]

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955. [81] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.

Although Senate rules do not necessarily allow a negative or tied vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson's nomination of sitting associate justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, only Democratic senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority's prior refusal to take up President Barack Obama's nomination of Merrick Garland to fill the vacancy. [82] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations. [83]

Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice Ruth Bader Ginsburg at her confirmation hearing (a).jpg
Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred with President George W. Bush's nomination of Harriet Miers in 2005. The Senate may also fail to act on a nomination, which expires at the end of the session. President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate failed to act on the March 2016 nomination of Merrick Garland, as the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump. [84]

Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the appointee can take office. [85] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date. [86] After receiving their commission, the appointee must then take the two prescribed oaths before assuming their official duties. [87] The importance of the oath taking is underscored by the case of Edwin M. Stanton. Although confirmed by the Senate on December 20, 1869, and duly commissioned as an associate justice by President Ulysses S. Grant, Stanton died on December 24, prior to taking the prescribed oaths. He is not, therefore, considered to have been a member of the court. [88] [89]

Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration to the present, the process has taken much longer and some believe this is because Congress sees justices as playing a more political role than in the past. [90] According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (2.3 months). [91] [92]

Recess appointments

When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed. [93]

No U.S. president since Dwight D. Eisenhower has made a recess appointment to the court, and the practice has become rare and controversial even in lower federal courts. [94] In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the court should only be made in "unusual circumstances"; [95] such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action. [95] [96]

The Supreme Court's 2014 decision in National Labor Relations Board v. Noel Canning limited the ability of the president to make recess appointments (including appointments to the Supreme Court); the court ruled that the Senate decides when the Senate is in session or in recess. Writing for the court, Justice Breyer stated, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business." [97] This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions. [98]


Lifetime tenure of justices can only be found for US Supreme Court Justices and the State of Rhode Island's Supreme Court justices, with all other democratic nations and all other US states having set term limits or mandatory retirement ages. [99] Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day." [100] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity. [101] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." [102] Proposals to solve these problems include term limits for justices, as proposed by Levinson [103] and Sabato [100] [104] and a mandatory retirement age proposed by Richard Epstein, [105] among others. [106] Alexander Hamilton in Federalist 78 argued that one benefit of lifetime tenure was that, "nothing can contribute so much to its firmness and independence as permanency in office." [107] [ non-primary source needed ]

The interior of the United States Supreme Court Inside the United States Supreme Court.jpg
The interior of the United States Supreme Court

Article Three, Section 1 of the Constitution provides that justices "shall hold their offices during good behavior", which is understood to mean that they may serve for the remainder of their lives, until death; furthermore, the phrase is generally interpreted to mean that the only way justices can be removed from office is by Congress via the impeachment process. The Framers of the Constitution chose good behavior tenure to limit the power to remove justices and to ensure judicial independence. [108] [109] [110] No constitutional mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign. [111] The only justice ever to be impeached was Samuel Chase, in 1804. The House of Representatives adopted eight articles of impeachment against him; however, he was acquitted by the Senate, and remained in office until his death in 1811. [112] No subsequent effort to impeach a sitting justice has progressed beyond referral to the Judiciary Committee. (For example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969.)

Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes they arise in quick succession, as in September 1971, when Hugo Black and John Marshall Harlan II left within days of each other, the shortest period of time between vacancies in the court's history. [113] Sometimes a great length of time passes between vacancies, such as the 11-year span, from 1994 to 2005, from the retirement of Harry Blackmun to the death of William Rehnquist, which was the second longest timespan between vacancies in the court's history. [114] On average a new justice joins the court about every two years. [115]

Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, although his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the court. Jimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.

Size of the court

One of the smallest Supreme Courts in the world, the US Supreme Court consists of nine members: one chief justice and eight associate justices. The U.S. Constitution does not specify the size of the Supreme Court, nor does it specify any specific positions for the court's members. The Constitution assumes the existence of the office of the chief justice, because it mentions in Article I, Section 3, Clause 6 that "the Chief Justice" must preside over impeachment trials of the President of the United States. The power to define the Supreme Court's size and membership has been assumed to belong to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through the Judiciary Act of 1789.

The size of the court was first altered by the Midnight Judges Act of 1801 which would have reduced the size of the court to five members upon its next vacancy (as federal judges have life tenure), but the Judiciary Act of 1802 promptly negated the 1801 act, restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew across the continent and as Supreme Court justices in those days had to ride the circuit, an arduous process requiring long travel on horseback or carriage over harsh terrain that resulted in months-long extended stays away from home, Congress added justices to correspond with the growth such that the number of seats for associate justices plus the chief justice became seven in 1807, nine in 1837, and ten in 1863. [116] [117]

At the behest of Chief Justice Chase, and in an attempt by the Republican Congress to limit the power of Democrat Andrew Johnson, Congress passed the Judicial Circuits Act of 1866, providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. Soon after Johnson left office, the new president Ulysses S. Grant, [118] a Republican, signed into law the Judiciary Act of 1869. This returned the number of justices to nine [119] (where it has since remained), and allowed Grant to immediately appoint two more judges.

President Franklin D. Roosevelt attempted to expand the court in 1937. His proposal envisioned the appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to "pack" the court with justices who would support Roosevelt's New Deal. [120] The plan, usually called the "court-packing plan", failed in Congress after members of Roosevelt's own Democratic Party believed it to be unconstitutional. It was defeated 70–20 in the Senate, and the Senate Judiciary Committee reported that it was "essential to the continuance of our constitutional democracy" that the proposal "be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America." [121] [122] [123] [124]

The expansion of the 5–4 conservative majority on the court to a 6–3 supermajority [125] during the presidency of Donald Trump led Joan Biskupic of CNN to consider the court the most conservative since the 1930s, with Republicans appointing 14 of the last 18 justices. [126] Some Democrats have called for an expansion in the court's size to fix what they see as an imbalance. In April 2021, during the 117th Congress, some Democrats in the House of Representatives introduced the Judiciary Act of 2021, a bill to expand the Supreme Court from nine to 13 seats. It met opposition within the party, and Speaker of the House Nancy Pelosi refused to bring it to the floor. [127] [128] Shortly after taking office in January 2021, Joe Biden established a presidential commission to study possible reforms to the Supreme Court. The commission's December 2021 final report discussed but took no position on expanding the size of the court. [129]

At nine members, the U.S. Supreme Court is one of the smallest supreme courts in the world. David Litt argues the court is too small to represent the perspectives of a country the United States' size. [130] Lawyer and legal scholar Jonathan Turley advocates for 19 justices, with the court being gradually expanded by two new members per presidential term, bringing the U.S. Supreme Court to a similar size as its counterparts in other developed countries. He says that a bigger court would reduce the power of the swing justice, ensure the court has "a greater diversity of views", and make confirmation of new justices less politically contentious. [131] [132]


Current justices

There are currently nine justices on the Supreme Court: Chief Justice John Roberts and eight associate justices. Among the current members of the court, Clarence Thomas is the longest-serving justice, with a tenure of 11,869 days (32 years, 181 days) as of April 21, 2024; the most recent justice to join the court is Ketanji Brown Jackson, whose tenure began on June 30, 2022, after being confirmed by the senate on April 7. [133]

Current justices of the Supreme Court [134]
Justice /
birthdate and place
Appointed by (party) SCV Age atStart date /
length of service
File-Official roberts CJ cropped.jpg (Chief Justice)
John Roberts
January 27, 1955
Buffalo, New York
G. W. Bush
78–22 5069September 29, 2005
18 years, 205 days
Clarence Thomas official SCOTUS portrait (cropped).jpg Clarence Thomas
June 23, 1948
Pin Point, Georgia
G. H. W. Bush
52–48 4375October 23, 1991
32 years, 181 days
Samuel Alito official photo (cropped).jpg Samuel Alito
April 1, 1950
Trenton, New Jersey
G. W. Bush
58–42 5574January 31, 2006
18 years, 81 days
Sonia Sotomayor in SCOTUS robe crop.jpg Sonia Sotomayor
June 25, 1954
New York City, New York
68–31 5569August 8, 2009
14 years, 257 days
Elena Kagan-1-1.jpg Elena Kagan
April 28, 1960
New York City, New York
63–37 5063August 7, 2010
13 years, 258 days
Associate Justice Neil Gorsuch Official Portrait (cropped 2).jpg Neil Gorsuch
August 29, 1967
Denver, Colorado
54–45 4956April 10, 2017
7 years, 11 days
Associate Justice Brett Kavanaugh Official Portrait.jpg Brett Kavanaugh
February 12, 1965
Washington, D.C.
50–48 5359October 6, 2018
5 years, 198 days
Amy Coney Barrett official portrait.jpg Amy Coney Barrett
January 28, 1972
New Orleans, Louisiana
52–48 4852October 27, 2020
3 years, 177 days
KBJackson.jpg Ketanji Brown Jackson
September 14, 1970
Washington, D.C.
53–47 5153June 30, 2022
1 year, 296 days

This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority, as the chief justice has seniority over all associate justices regardless of tenure) on the court:

Supreme Court of the United States

Court demographics

The court currently has five male and four female justices. Among the nine justices, there are two African American justices (Justices Thomas and Jackson) and one Hispanic justice (Justice Sotomayor). One of the justices was born to at least one immigrant parent: Justice Alito's father was born in Italy. [135] [136]

At least six justices are Roman Catholics, one is Jewish, and one is Protestant. It is unclear whether Neil Gorsuch considers himself a Catholic or an Episcopalian. [137] Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists. [138] [139] The first Catholic justice was Roger Taney in 1836, [140] and 1916 saw the appointment of the first Jewish justice, Louis Brandeis. [141] In recent years the historical situation has reversed, as most recent justices have been either Catholic or Jewish.

Three justices are from the state of New York, two are from Washington, D.C., and one each is from New Jersey, Georgia, Colorado, and Louisiana. [142] [143] [144] Eight of the current justices received their Juris Doctor from an Ivy League law school: Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and John Roberts from Harvard; plus Samuel Alito, Brett Kavanaugh, Sonia Sotomayor and Clarence Thomas from Yale. Only Amy Coney Barrett did not; she received her Juris Doctor at Notre Dame.

Previous positions or offices, judicial or federal government, prior to joining the court (by order of seniority following the Chief Justice) include:

JusticePosition or office
John Roberts Judge of the United States Court of Appeals for the District of Columbia Circuit (2003–2005)
Clarence Thomas Chair of the Equal Employment Opportunity Commission (1982–1990)
Judge of the United States Court of Appeals for the District of Columbia Circuit (1990–1991)
Samuel Alito United States Attorney for the District of New Jersey (1987–1990)
Judge of the United States Court of Appeals for the Third Circuit (1990–2006)
Sonia Sotomayor Judge of the United States District Court for the Southern District of New York (1992–1998)
Judge of the United States Court of Appeals for the Second Circuit (1998–2009)
Elena Kagan Solicitor General of the United States (2009–2010)
Neil Gorsuch Judge of the United States Court of Appeals for the Tenth Circuit (2006–2017)
Brett Kavanaugh Judge of the United States Court of Appeals for the District of Columbia Circuit (2006–2018)
Amy Coney Barrett Judge of the United States Court of Appeals for the Seventh Circuit (2017–2020)
Ketanji Brown Jackson Vice Chair of the United States Sentencing Commission (2010–2014)
Judge of the United States District Court for the District of Columbia (2013–2021)
Judge of the United States Court of Appeals for the District of Columbia Circuit (2021–2022)
The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan O'Connor, Sotomayor, Ginsburg, and Kagan.jpg
The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan

For much of the court's history, every justice was a man of Northwestern European descent, and almost always Protestant. Diversity concerns focused on geography, to represent all regions of the country, rather than religious, ethnic, or gender diversity. [145] Racial, ethnic, and gender diversity in the court increased in the late 20th century. Thurgood Marshall became the first African-American justice in 1967. [141] Sandra Day O'Connor became the first female justice in 1981. [141] In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991. [146] O'Connor was joined by Ruth Bader Ginsburg, the first Jewish woman on the Court, in 1993. [147] After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice, [141] and in 2010 by Elena Kagan. [147] After Ginsburg's death on September 18, 2020, Amy Coney Barrett was confirmed as the fifth woman in the court's history on October 26, 2020. Ketanji Brown Jackson is the sixth woman and first African-American woman on the court.

There have been six foreign-born justices in the court's history: James Wilson (1789–1798), born in Caskardy, Scotland; James Iredell (1790–1799), born in Lewes, England; William Paterson (1793–1806), born in County Antrim, Ireland; David Brewer (1889–1910), born to American missionaries in Smyrna, Ottoman Empire (now İzmir, Turkey); George Sutherland (1922–1939), born in Buckinghamshire, England; and Felix Frankfurter (1939–1962), born in Vienna, Austria-Hungary (now in Austria). [141]

Since 1789, about one-third of the justices have been U.S. military veterans. Samuel Alito is the only veteran currently serving on the court. [148] Retired justices Stephen Breyer and Anthony Kennedy also served in the U.S. military. [149]

Judicial leanings

Justices are nominated by the president in power, and receive confirmation by the Senate, historically holding many of the views of the nominating president's political party. While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, organizations such as the Federalist Society do officially filter and endorse judges that have a sufficiently conservative view of the law. Jurists are often informally categorized in the media as being conservatives or liberal. Attempts to quantify the ideologies of jurists include the Segal–Cover score, Martin-Quinn score, and Judicial Common Space score. [150] [151]

Devins and Baum argue that before 2010, the Court never had clear ideological blocs that fell perfectly along party lines. In choosing their appointments, Presidents often focused more on friendship and political connections than on ideology. Republican presidents sometimes appointed liberals and Democratic presidents sometimes appointed conservatives. As a result, "... between 1790 and early 2010 there were only two decisions that the Guide to the U.S. Supreme Court designated as important and that had at least two dissenting votes in which the Justices divided along party lines, about one-half of one percent." [152] :316 [153] Even in the turbulent 1960s and 1970s, Democratic and Republican elites tended to agree on some major issues, especially concerning civil rights and civil liberties—and so did the justices. But since 1991, they argue, ideology has been much more important in choosing justices—all Republican appointees have been committed conservatives and all Democratic appointees have been liberals. [152] :331–344 As the more moderate Republican justices retired, the court has become more partisan. The Court became more divided sharply along partisan lines with justices appointed by Republican presidents taking increasingly conservative positions and those appointed by Democrats taking moderate liberal positions. [152] :357

Balance of the US Supreme Court since 2020, shaded by party of the nominating president: Blue represents a Democratic president and red a Republican president U.S. Supreme Court by the Party of the nominating President.png
Balance of the US Supreme Court since 2020, shaded by party of the nominating president: Blue represents a Democratic president and red a Republican president

Following the confirmation of Amy Coney Barrett in 2020 after the death of Ruth Bader Ginsburg, the court is composed of six justices appointed by Republican presidents and three appointed by Democratic presidents. It is popularly accepted that Chief Justice Roberts and associate justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, appointed by Republican presidents, compose the court's conservative wing, and that Justices Sotomayor, Kagan, and Jackson, appointed by Democratic presidents, compose the court's liberal wing. [154] Prior to Justice Ginsburg's death in 2020, the conservative Chief Justice Roberts was sometimes described as the court's 'median justice' (with four justices more liberal and four more conservative than him). [155] [156] Darragh Roche argues that Kavanaugh as 2021's median justice exemplifies the rightward shift in the court. [157] [ needs update ]

FiveThirtyEight found the number of unanimous decisions dropped from the 20-year average of nearly 50% to nearly 30% in 2021 while party-line rulings increased from a 60-year average just above zero to a record high 21%. [158] That year Ryan Williams pointed to the party-line votes for confirmations of justices as evidence that the court is of partisan importance to the Senate. [159] In 2022, Simon Lazarus of Brookings critiqued the U.S. Supreme Court as an increasingly partisan institution. [160]

Retired justices

There are currently three living retired justices of the Supreme Court of the United States: Anthony Kennedy, David Souter, and Stephen Breyer. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the chief justice, on request of the chief judge of the lower court and with the consent of the retired justice. In recent years, Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court. [161] The status of a retired justice is analogous to that of a circuit or district court judge who has taken senior status, and eligibility of a Supreme Court justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.

In recent times, justices tend to strategically plan their decisions to leave the bench with personal, institutional, ideological, partisan, and political factors playing a role. [162] [163] The fear of mental decline and death often motivates justices to step down. The desire to maximize the court's strength and legitimacy through one retirement at a time, when the court is in recess and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a philosophically compatible president holding office, to ensure that a like-minded successor would be appointed. [164] [165]

Retired justices of the Supreme Court [134]
Birthdate and place
Appointed byAge atTenure (active service)
RetirementPresentStart dateEnd dateLength
Anthony Kennedy official SCOTUS portrait crop.jpg Anthony Kennedy
July 23, 1936
Sacramento, California
8287February 18, 1988July 31, 201830 years, 163 days
DavidSouter.jpg David Souter
September 17, 1939
Melrose, Massachusetts
G. H. W. Bush
6984October 9, 1990June 29, 200918 years, 263 days
Stephen Breyer official SCOTUS portrait crop.jpg Stephen Breyer
August 15, 1938
San Francisco, California
8385August 3, 1994June 30, 202227 years, 331 days


As of 2024, associate justices receive a yearly salary of $298,500 and the chief justice is paid $312,200 per year. [166] Once a justice meets age and service requirements, the justice may retire with a pension based on the same formula used for federal employees. As with other federal courts judges, their pension can never be less than their salary at the time of retirement according to the Compensation Clause of Article III of the Constitution.[ citation needed ]

Seniority and seating

The Roberts Court (since June 2022): Front row (left to right): Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Back row (left to right): Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson. Supreme Court of the United States - Roberts Court 2022.jpg
The Roberts Court (since June 2022): Front row (left to right): Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Back row (left to right): Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.

For the most part, the day-to-day activities of the justices are governed by rules of protocol based upon the seniority of justices. The chief justice always ranks first in the order of precedence—regardless of the length of their service. The associate justices are then ranked by the length of their service. The chief justice sits in the center on the bench, or at the head of the table during conferences. The other justices are seated in order of seniority. The senior-most associate justice sits immediately to the chief justice's right; the second most senior sits immediately to their left. The seats alternate right to left in order of seniority, with the most junior justice occupying the last seat. Therefore, since the October 2022 term, the court sits as follows from left to right, from the perspective of those facing the court: Barrett, Gorsuch, Sotomayor, Thomas (most senior associate justice), Roberts (chief justice), Alito, Kagan, Kavanaugh, and Jackson. Likewise, when the members of the court gather for official group photographs, justices are arranged in order of seniority, with the five most senior members seated in the front row in the same order as they would sit during Court sessions (currently, from left to right, Sotomayor, Thomas, Roberts, Alito, and Kagan), and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions (Barrett, Gorsuch, Kavanaugh, and Jackson).

In the justices' private conferences, current practice is for them to speak and vote in order of seniority, beginning with the chief justice first and ending with the most junior associate justice. By custom, the most junior associate justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving beverages and transmitting orders of the court to the clerk. [167]


The present U.S. Supreme Court building as viewed from the front Panorama of United States Supreme Court Building at Dusk.jpg
The present U.S. Supreme Court building as viewed from the front
From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol. SCOTUS-oldsenate.jpg
From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol.

The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City. When Philadelphia became the capital, the court met briefly in Independence Hall before settling in Old City Hall from 1791 until 1800. After the government moved to Washington, D.C., the court occupied various spaces in the Capitol building until 1935, when it moved into its own purpose-built home. The four-story building was designed by Cass Gilbert in a classical style sympathetic to the surrounding buildings of the Capitol and Library of Congress, and is clad in marble. The building includes the courtroom, justices' chambers, an extensive law library, various meeting spaces, and auxiliary services including a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own Supreme Court Police, separate from the Capitol Police. [168]

Located across First Street from the United States Capitol at One First Street NE and Maryland Avenue, [169] [170] the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays. [169] Visitors may not tour the actual courtroom unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film. [168] When the court is not in session, lectures about the courtroom are held hourly from 9:30 am to 3:30 pm and reservations are not necessary. [168] When the court is in session the public may attend oral arguments, which are held twice each morning (and sometimes afternoons) on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available. [171] The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. The court releases opinions beginning at 10 am on scheduled "non-argument days" (also called opinion days) [172] These sessions, which typically last 15 to 30-minute, are also open to the public. [172] [168] From mid-May until the end of June, at least one opinion day is scheduled each week. [168] Supreme Court Police are available to answer questions. [169]


Congress is authorized by Article III of the federal Constitution to regulate the Supreme Court's appellate jurisdiction. The Supreme Court has original and exclusive jurisdiction over cases between two or more states [173] but may decline to hear such cases. [174] It also possesses original but not exclusive jurisdiction to hear "all actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; all controversies between the United States and a State; and all actions or proceedings by a State against the citizens of another State or against aliens." [175]

In 1906, the court asserted its original jurisdiction to prosecute individuals for contempt of court in United States v. Shipp . [176] The resulting proceeding remains the only contempt proceeding and only criminal trial in the court's history. [177] [178] The contempt proceeding arose from the lynching of Ed Johnson in Chattanooga, Tennessee the evening after Justice John Marshall Harlan granted Johnson a stay of execution to allow his lawyers to file an appeal. Johnson was removed from his jail cell by a lynch mob, aided by the local sheriff who left the prison virtually unguarded, and hanged from a bridge, after which a deputy sheriff pinned a note on Johnson's body reading: "To Justice Harlan. Come get your nigger now." [177] The local sheriff, John Shipp, cited the Supreme Court's intervention as the rationale for the lynching. The court appointed its deputy clerk as special master to preside over the trial in Chattanooga with closing arguments made in Washington before the Supreme Court justices, who found nine individuals guilty of contempt, sentencing three to 90 days in jail and the rest to 60 days in jail. [177] [178] [179]

In all other cases, the court has only appellate jurisdiction, including the ability to issue writs of mandamus and writs of prohibition to lower courts. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the court are disputes between two or more states. [180]

The court's appellate jurisdiction consists of appeals from federal courts of appeal (through certiorari , certiorari before judgment, and certified questions), [181] the United States Court of Appeals for the Armed Forces (through certiorari), [182] the Supreme Court of Puerto Rico (through certiorari), [183] the Supreme Court of the Virgin Islands (through certiorari), [184] the District of Columbia Court of Appeals (through certiorari), [185] and "final judgments or decrees rendered by the highest court of a State in which a decision could be had" (through certiorari). [185] In the last case, an appeal may be made to the Supreme Court from a lower state court if the state's highest court declined to hear an appeal or lacks jurisdiction to hear an appeal. For example, a decision rendered by one of the Florida District Courts of Appeal can be appealed to the U.S. Supreme Court if (a) the Supreme Court of Florida declined to grant certiorari, e.g. Florida Star v. B. J. F. , or (b) the district court of appeal issued a per curiam decision simply affirming the lower court's decision without discussing the merits of the case, since the Supreme Court of Florida lacks jurisdiction to hear appeals of such decisions. [186] The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases. It has to be noted that this "collateral review" often only applies to individuals on death row and not through the regular judicial system. [187]

Since Article Three of the United States Constitution stipulates that federal courts may only entertain "cases" or "controversies", the Supreme Court cannot decide cases that are moot and it does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard (1974), the court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the court on his claim would not be able to redress any injury he had suffered. However, the court recognizes some circumstances where it is appropriate to hear a case that is seemingly moot. If an issue is "capable of repetition yet evading review", the court would address it even though the party before the court would not themselves be made whole by a favorable result. In Roe v. Wade (1973), and other abortion cases, the court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer than the typical human gestation period to appeal a case through the lower courts to the Supreme Court. Another mootness exception is voluntary cessation of unlawful conduct, in which the court considers the probability of recurrence and plaintiff's need for relief. [188]

Justices as circuit justices

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "circuit justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time. Under the Judiciary Act of 1789, each justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many justices, who cited the difficulty of travel. Moreover, there was a potential for a conflict of interest on the court if a justice had previously decided the same case while riding circuit. Circuit riding ended in 1901, when the Circuit Court of Appeals Act was passed, and circuit riding was officially abolished by Congress in 1911. [189]

The circuit justice for each circuit is responsible for dealing with certain types of applications that, by law and the rules of the court, may be addressed by a single justice. Ordinarily, a justice will resolve such an application by simply endorsing it "granted" or "denied" or entering a standard form of order; however, the justice may elect to write an opinion, referred to as an in-chambers opinion. Congress has specifically authorized one justice to issue a stay pending certiorari in 28 U.S.C.   § 2101(f) [ inappropriate external link? ]. Each justice also decides routine procedural requests, such as for extensions of time.

Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court." [190] However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989. [191] [192] Nevertheless, requests for injunctions under the All Writs Act are sometimes directed to the circuit justice. In the past,[ when? ] circuit justices also sometimes granted motions for bail in criminal cases, writs of habeas corpus , and applications for writs of error granting permission to appeal. [193]

A circuit justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A circuit justice sitting with the Court of Appeals has seniority over the chief judge of the circuit. [194] The chief justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each associate justice is assigned to one or two judicial circuits.

As of September 28, 2022, the allotment of the justices among the circuits is as follows: [195]

District of Columbia Circuit Chief Justice Roberts
First Circuit Justice Jackson
Second Circuit Justice Sotomayor
Third Circuit Justice Alito
Fourth Circuit Chief Justice Roberts
Fifth Circuit Justice Alito
Sixth Circuit Justice Kavanaugh
Seventh Circuit Justice Barrett
Eighth Circuit Justice Kavanaugh
Ninth Circuit Justice Kagan
Tenth Circuit Justice Gorsuch
Eleventh Circuit Justice Thomas
Federal Circuit Chief Justice Roberts

    Five of the current justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Sotomayor (Second Circuit), Justice Alito (Third Circuit), Justice Barrett (Seventh Circuit), and Justice Gorsuch (Tenth Circuit).


    Case selection

    Nearly all cases come before the court by way of petitions for writs of certiorari , commonly referred to as cert, upon which the court grants a writ of certiorari. The court may review via this process any civil or criminal case in the federal courts of appeals. [196] It may also review by certiorari a final judgment of the highest court of a state if the judgment involves a question of federal statutory or constitutional law. [197] A case may alternatively come before the court as a direct appeal from a three-judge federal district court. [198] The party that petitions the court for review is the petitioner and the non-mover is the respondent.

    Case names before the court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

    The court also hears questions submitted to it by appeals courts themselves via a process known as certification. [196]

    The Supreme Court relies on the record assembled by lower courts for the facts of a case and deals solely with the question of how the law applies to the facts presented. There are however situations where the court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee , a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford , [199] parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact. [200] Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury. [201] Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware , and water rights between riparian states upstream of navigable waters in Kansas v. Colorado .

    A cert petition is voted on at a session of the court called conference. A conference is a private meeting of the nine justices by themselves; the public and the justices' clerks are excluded. The rule of four permits four of the nine justices to grant a writ of certiorari. If it is granted, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition. The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:

    When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split"; if the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the case's final ruling. To manage the high volume of cert petitions received by the court each year (of the more than 7,000 petitions the court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the court employs an internal case management tool known as the "cert pool"; currently, all justices except for Justices Alito and Gorsuch participate in the cert pool. [202] [203] [204] [205]

    Oral argument

    Seth P. Waxman at oral argument presents his case and answers questions from the justices. Waxman during Hyatt III sketch.jpg
    Seth P. Waxman at oral argument presents his case and answers questions from the justices.

    When the court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the court, amici curiae , or "friends of the court", may also file briefs. The court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the court may choose to give more time, although this is rare), [206] and during that time, the justices may interrupt the advocate and ask questions. In 2019, the court adopted a rule generally allowing advocates to speak uninterrupted for the first two minutes of their argument. [207] The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The court advises counsel to assume that the justices are familiar with and have read the briefs filed in a case.


    At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the justices. After the oral argument is concluded, usually in the same week as the case was submitted, the justices retire to another conference at which the preliminary votes are tallied and the court sees which side has prevailed. One of the justices in the majority is then assigned to write the court's opinion, also known as the "majority opinion", an assignment made by the most senior justice in the majority, with the chief justice always being considered the most senior. Drafts of the court's opinion circulate among the justices until the court is prepared to announce the judgment in a particular case. [208]

    Justices are free to change their votes on a case up until the decision is finalized and published. In any given case, a justice is free to choose whether or not to author an opinion or else simply join the majority or another justice's opinion. There are several primary types of opinions:

    It is the court's practice to issue decisions in all cases argued in a particular term by the end of that term. Within that term, the court is under no obligation to release a decision within any set time after oral argument. Since recording devices are banned inside the courtroom of the Supreme Court Building, the delivery of the decision to the media has historically been done via paper copies in what was known as the "Running of the Interns". [209] However, this practice has become passé as the Court now posts electronic copies of the opinions on its website as they are being announced. [210]

    It is possible that through recusals or vacancies the court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. [211] If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the court had been evenly divided. For cases brought to the Supreme Court by direct appeal from a United States District Court, the chief justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there. [212] This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945). [213]

    Published opinions

    The court's opinions are published in three stages. First, a slip opinion is made available on the court's web site and through other outlets. Next, several opinions and lists of the court's orders are bound together in paperback form, called a preliminary print of United States Reports , the official series of books in which the final version of the court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued by the Reporter of Decisions. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports (or a competing version published by another commercial legal publisher but containing parallel citations) to allow those who read their pleadings and other briefs to find the cases quickly and easily. As of January 2019, there are:

    As of March 2012, the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012.[ citation needed ] This figure does not reflect the number of cases the court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle , where Meredith v. Jefferson County Board of Education was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which are a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.

    Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter , published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals and other legal media, case citations generally contain cites from each of the three reporters; for example, citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Com'n, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition. [217] [218]

    Citations to published opinions

    Lawyers use an abbreviated format to cite cases, in the form "vol U.S. page, pin (year)", where vol is the volume number, page is the page number on which the opinion begins, and year is the year in which the case was decided. Optionally, pin is used to "pinpoint" to a specific page number within the opinion. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973), which means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For opinions or orders that have not yet been published in the preliminary print, the volume and page numbers may be replaced with ___

    Supreme Court bar

    In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys.[ citation needed ] The rest join for a one-time fee of $200, with the court collecting about $750,000 annually. Attorneys can be admitted as either individuals or as groups. The group admission is held before the current justices of the Supreme Court, wherein the chief justice approves a motion to admit the new attorneys. [219] Lawyers commonly apply for the cosmetic value of a certificate to display in their office or on their resume. They also receive access to better seating if they wish to attend an oral argument. [220] Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library. [221]


    A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of around two weeks known as "sittings" and "recesses"; justices hear cases and deliver rulings during sittings, and discuss cases and write opinions during recesses. [222]

    Institutional powers

    Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review Marbury v Madison John Marshall by Swatjester crop.jpg
    Inscription on the wall of the Supreme Court Building from Marbury v. Madison , in which Chief Justice John Marshall outlined the concept of judicial review

    The federal court system and the judicial authority to interpret the Constitution received little attention in the debates over the drafting and ratification of the Constitution. The power of judicial review, in fact, is nowhere mentioned in it. Over the ensuing years, the question of whether the power of judicial review was even intended by the drafters of the Constitution was quickly frustrated by the lack of evidence bearing on the question either way. [223] Nevertheless, the power of judiciary to overturn laws and executive actions it determines are unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, and the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute."

    The Supreme Court firmly established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the American system of checks and balances. In explaining the power of judicial review, Chief Justice John Marshall stated that the authority to interpret the law was the particular province of the courts, part of the duty of the judicial department to say what the law is. His contention was not that the court had privileged insight into constitutional requirements, but that it was the constitutional duty of the judiciary, as well as the other branches of government, to read and obey the dictates of the Constitution. [223]

    Since the founding of the republic, there has been a tension between the practice of judicial review and the democratic ideals of egalitarianism, self-government, self-determination and freedom of conscience. At one pole are those who view the federal judiciary and especially the Supreme Court as being "the most separated and least checked of all branches of government." [224] Indeed, federal judges and justices on the Supreme Court are not required to stand for election by virtue of their tenure "during good behavior", and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Although subject to the process of impeachment, only one justice has ever been impeached and no Supreme Court justice has been removed from office. At the other pole are those who view the judiciary as the least dangerous branch, with little ability to resist the exhortations of the other branches of government. [223]


    The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia . President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!" [225] Some state governments in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the court's order in United States v. Nixon (1974) to surrender the Watergate tapes. [226] Nixon ultimately complied with the Supreme Court's ruling. [227]

    Supreme Court decisions can be purposefully overturned by constitutional amendment, something that has happened on six occasions: [228]

    When the court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter Fair Pay Act of 2009, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional consideration: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials. [229]

    In addition, the other two branches can restrain the court through other mechanisms. Congress can increase the number of justices, giving the president power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The court sanctioned such congressional action in the Reconstruction Era case ex parte McCardle (1869), although it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871). [230]

    On the other hand,[ tone ] through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government; for example, in United States v. Curtiss-Wright Export Corp. (1936), Dames & Moore v. Regan (1981), and notably in Goldwater v. Carter (1979), which effectively gave the presidency the power to terminate ratified treaties without the consent of Congress. The court's decisions can also impose limitations on the scope of Executive authority, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).[ citation needed ]

    Law clerks

    Each Supreme Court justice hires several law clerks to review petitions for writ of certiorari , research them, prepare bench memorandums, and draft opinions. Associate justices are allowed four clerks. The chief justice is allowed five clerks, but Chief Justice Rehnquist hired only three per year, and Chief Justice Roberts usually hires only four. [231] Generally, law clerks serve a term of one to two years.

    The first law clerk was hired by Associate Justice Horace Gray in 1882. [231] [232] Oliver Wendell Holmes Jr. and Louis Brandeis were the first Supreme Court justices to use recent law school graduates as clerks, rather than hiring "a stenographer-secretary." [233] Most law clerks are recent law school graduates.

    The first female clerk was Lucile Lomen, hired in 1944 by Justice William O. Douglas. [231] The first African-American, William T. Coleman Jr., was hired in 1948 by Justice Felix Frankfurter. [231] A disproportionately large number of law clerks have obtained law degrees from elite law schools, especially Harvard, Yale, the University of Chicago, Columbia, and Stanford. From 1882 to 1940, 62% of law clerks were graduates of Harvard Law School. [231] Those chosen to be Supreme Court law clerks usually have graduated in the top of their law school class and were often an editor of the law review or a member of the moot court board. By the mid-1970s, clerking previously for a judge in a federal court of appeals had also become a prerequisite to clerking for a Supreme Court justice.

    Ten Supreme Court justices previously clerked for other justices: Byron White for Frederick M. Vinson, John Paul Stevens for Wiley Rutledge, William Rehnquist for Robert H. Jackson, Stephen Breyer for Arthur Goldberg, John Roberts for William Rehnquist, Elena Kagan for Thurgood Marshall, Neil Gorsuch for both Byron White and Anthony Kennedy, Brett Kavanaugh also for Kennedy, Amy Coney Barrett for Antonin Scalia, and Ketanji Brown Jackson for Stephen Breyer. Justices Gorsuch and Kavanaugh served under Kennedy during the same term. Gorsuch is the first justice to clerk for and subsequently serve alongside the same justice, serving alongside Kennedy from April 2017 through Kennedy's retirement in 2018. With the confirmation of Justice Kavanaugh, for the first time a majority of the Supreme Court was composed of former Supreme Court law clerks (Roberts, Breyer, Kagan, Gorsuch and Kavanaugh, now joined by Barrett and Jackson).

    Several current Supreme Court justices have also clerked in the federal courts of appeals: John Roberts for Judge Henry Friendly of the United States Court of Appeals for the Second Circuit, Justice Samuel Alito for Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit, Elena Kagan for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit, Neil Gorsuch for Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia, Brett Kavanaugh for Judge Walter Stapleton of the United States Court of Appeals for the Third Circuit and Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and Amy Coney Barrett for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.

    Politicization of the court

    Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s," according to a study published in 2009 by the law review of Vanderbilt University Law School. [234] [235] "As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts," former federal court of appeals judge J. Michael Luttig said. [234] David J. Garrow, professor of history at the University of Cambridge, stated that the court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists." [234] According to the Vanderbilt Law Review study, this politicized hiring trend reinforces the impression that the Supreme Court is "a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law." [234]

    Criticism and controversies

    Unlike in most high courts, the United States Supreme Court has lifetime tenure, an unusual amount of power over elected branches of government, and a difficult constitution to amend. [236] These, among other factors, have been attributed by some critics to the Court's diminished stature abroad [237] and lower approval ratings at home, which have dropped from the mid-60s in the late 1980s to around 40% in the early 2020s. Additional factors cited by critics include the polarization of national politics, ethics scandals, and specific controversial partisan rulings, including the relaxation of campaign finance rules, [238] weakened voting rights, [239] Dobbs v. Jackson and Bush v. Gore . Other controversies include the selection and composition of justices on the court and a lack of transparency in court decisions.

    Approval ratings

    The Supreme Court has historically been one of few political institutions that have consistently been respected by Democrats and Republicans alike. Public trust in the court peaked in the late 1990s. Since the 2022 Dobbs ruling that overturned Roe v. Wade and permitted states to restrict abortion rights, Democrats and independents have increasingly lost trust in the court, seen the court as political, and expressed support for reforming the institution. [240]

    After recording recent high approval ratings in the late 1980s around 66% approval, [241] the court's ratings have declined to an average of around 40% between mid-2021 and February 2024. [242]

    Composition and selection

    The electoral college (which elects the President who nominates the justices) and the US Senate which confirms the justices, have selection biases that favor rural states that tend to vote Republican, resulting in a conservative Supreme Court. [243] Ziblatt and Levitsky estimate that 3 or 4 of the seats held by conservative justices on the court would be held by justices appointed by a Democratic president if the Presidency and Senate were selected directly by the popular vote. [244] The three Trump appointees to the court were all nominated by a president who finished second in the popular vote and confirmed by Senators representing a minority of Americans. [245] In addition, Clarence Thomas' confirmation and Merrick Garland's blocked confirmation in 2016 were both decided by Senators representing a minority of Americans. [246] Greg Price also critiqued the Court as minority rule. [247]

    Moreover, the Federalist Society acted as a filter for judicial nominations during the Trump administration, [248] ensuring the latest conservative justices lean even further to the right. [243] 86% of judges Trump appointed to circuit courts and the Supreme Court were Federalist Society members. [249] David Litt critiques it as "an attempt to impose rigid ideological dogma on a profession once known for intellectual freedom." [250]

    The 2016 stonewalling of Merrick Garland's confirmation and subsequent filling with Neil Gorsuch has been critiqued as a 'stolen seat' citing precedent from the 20th century of confirmations during election years, [251] [252] while proponents cited three blocked nominations between 1844 and 1866. [253] In recent years, Democrats have accused Republican leaders such as Mitch McConnell of hypocrisy, as they were instrumental in blocking the nomination of Merrick Garland, but then rushed through the appointment of Amy Coney Barrett, even though both vacancies occurred close to an election. [254]


    Ethical controversies have grown with reports of justices (and their close family members) accepting expensive gifts, travel, business deals, and speaking fees without oversight or recusals from cases that present conflicts of interest. [255] [256] [257] [258] [259] [260] [261] Spousal income and connections to cases has been redacted from the Justices' ethical disclosure forms [262] while justices, such as Samuel Alito and Clarence Thomas, failed to disclose many large financial gifts including free vacations valued at as much as $500,000. [263] [264]

    On November 13, 2023, the court issued its first-ever Code of Conduct for Justices of the Supreme Court of the United States to set "ethics rules and principles that guide the conduct of the Members of the Court." [265] [266] The Code has generally been received as a significant first step but also as a measure that does not address the ethics concerns of many notable critics who found the Code relatively weaker than those for federal judges, the legislature and the executive branch while also lacking an enforcement mechanism. [267] [268] [269] [270] The Code's commentary denied past wrongdoing by saying that the Justices have largely abided by these principles and are simply publishing them now. [271] [272] [273] This has prompted some criticism that the court hopes to legitimize past and future scandals through this Code. [274] [275]

    Lack of accountability

    The ethics rules guiding the court's members are set and enforced by the justices, meaning the members of the court have no external checks on their behavior other than the impeachment of a justice by Congress. [276] [277] Chief Justice Roberts refused to testify before the Senate Judiciary Committee in April 2023, reasserting his desire for the Supreme Court to continue to monitor itself despite mounting ethics scandals. [278] Lower courts, by contrast, discipline according to the 1973 Code of Conduct for U.S. judges which is enforced by the Judicial Conduct and Disability Act of 1980. [276]

    Article III, Section I of the Constitution of the United States  (1776) establishes that the justices hold their office during good behavior. Thus far only one justice (Associate Justice Samuel Chase in 1804) has ever been impeached, yet none have ever been removed from office. [279]

    The lack of external enforcement of ethics or other conduct violations makes the Supreme Court an outlier in modern organizational best-practices. [276]

    Individual rights

    Some of the most notable historical decisions that were criticized for failing to protect individual rights include the Dred Scott (1857) decision that upheld slavery, with Chief Justice Taney stating in his opinion that:"[African Americans had] no rights which the white man was bound to respect..." [280] Another is Plessy v. Ferguson (1896) that upheld segregation under the doctrine of separate but equal. [281] In addition, the Civil Rights Cases (1883) and Slaughter-House Cases (1873) all but eviscerated civil rights legislation enacted during the Reconstruction era, and thereby paving the road for Jim Crow laws. [282]

    However, others argue that the court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus should be limited to sovereign territory. [283]

    Protestors in support of keeping Roe v. Wade. Defend Roe v Wade 0022 (52061702833).jpg
    Protestors in support of keeping Roe v. Wade .

    After Dobbs v. Jackson Women's Health Organization overturned nearly 50 years of precedent set by Roe v. Wade, some experts expressed concern that this may be the beginning of a rollback of individual rights that had been previously established under the Substantive due process principle, in part because Justice Clarence Thomas wrote in his concurring opinion in Dobbs that the decision should prompt the court to reconsider all of the court's past substantive due process decisions. [284] Due process rights claimed to be at risk are: [284]

    Some experts such as Melissa Murray, law professor at N.Y.U. School of Law, have claimed that protections for interracial marriage, established in Loving v. Virginia (1967), may also be at risk. [285] Although other experts, such as Josh Blackman, a law professor at South Texas College of Law, have countered with the claim that Loving relied more heavily upon Equal Protection Clause grounds than substantive due process. [286]

    More consequential than merely Griswold and its progeny, however, is the fact that substantive due process has been the primary vehicle used by the Supreme Court to incorporate the Bill of Rights against state and local governments. [287] Indeed, Associate Justice Clarence Thomas does not believe in substantive due process and has referred to it as 'legal fiction'. [288] Instead, Thomas has argued that the Privileges or Immunities Clause is a sounder vehicle for incorporating the Bill of Rights. [289] Unfortunately for Thomas, outside of Associate Justice Gorsuch's commentary in Timbs v. Indiana, he has received little support for this viewpoint. [290]

    Judicial activism

    The Supreme Court is sometimes criticized for engaging in judicial activism. This criticism is leveled by those who believe the court should not interpret the law in any way besides through the lens of past precedent or Textualism. However, those on both sides of the political aisle often level this accusation at the court. The debate around judicial activism typically involves accusing the other side of activism, whilst denying that your own side engages in it. [291]

    Conservatives often cite the decision in Roe v. Wade (1973) as an example of liberal Judicial activism. In its decision, the court legalized abortion on the basis of a "right to privacy" that they found inherent in the Due Process Clause of the Fourteenth Amendment, [292] a reasoning that some conservative critics argued was circuitous.[ citation needed ]

    Roe v. Wade was overturned nearly fifty years later by Dobbs v. Jackson (2022), ending the recognition of abortion access as a constitutional right and returning the issue of abortion back to the states. David Litt criticized the decision in Dobbs as activism on the part of the court's conservative majority because the court failed to respect past precedent, eschewing the principle of Stare decisis that usually guides the court's decisions. [293] Reaction to the two cases illustrates how both sides often accuse the other of engaging in Judicial activism.[ citation needed ]

    The decision in Brown v. Board of Education , which banned racial segregation in public schools was criticized as activist by conservatives Pat Buchanan, [294] Robert Bork [295] and Barry Goldwater. [296] More recently, Citizens United v. Federal Election Commission was criticized for expanding upon the precedent in First National Bank of Boston v. Bellotti (1978) that the First Amendment applies to corporations. [297]

    Some experts criticize the complaint of judicial activism, with Supreme Court Justice Anthony Kennedy saying that, "An activist court is a court that makes a decision you don't like." [298]

    Outdated and an outlier

    Colm Quinn says that a criticism leveled at the court, as well as other American institutions, is that after two centuries they are beginning to look their age. He cites four features of the United States Supreme Court that make it different from high courts in other countries, that help explain why polarization is an issue in the United States court: [299]


    Michael Waldman argued that no other country gives its Supreme Court as much power. [300] Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power", it is likely to "self-indulge itself", and unlikely to "engage in dispassionate analysis." [301] Larry Sabato wrote that the federal courts, and especially the Supreme Court, have excessive power. [100]

    Some members of Congress considered the results from the 2021–2022 term a shift of government power into the Supreme Court, and a "judicial coup". [302] The 2021–2022 term of the court was the first full term following the appointment of three judges by Republican president Donald TrumpNeil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — which created a six-strong conservative majority on the court. Subsequently, at the end of the term, the court issued a number of decisions that favored this conservative majority while significantly changing the landscape with respect to rights. These included Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey in recognizing abortion is not a constitutional right, New York State Rifle & Pistol Association, Inc. v. Bruen which made public possession of guns a protected right under the Second Amendment, Carson v. Makin and Kennedy v. Bremerton School District which both weakened the Establishment Clause separating church and state, and West Virginia v. EPA which weakened the power of executive branch agencies to interpret their congressional mandate. [303] [304] [305]

    This criticism is related to complaints about judicial activism.[ citation needed ] George Will wrote that the court has an increasingly central role in American governance. [306] [ failed verification ]

    Federalism debate

    There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison [307] and Alexander Hamilton [308] argued in The Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, [309] [310] [311] [312] others argue that expansive federal power is good and consistent with the Framers' wishes. [313] The Tenth Amendment to the United States Constitution explicitly grants "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

    The court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005. [314] Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." [315] Justice Alito said congressional authority under the Commerce Clause is "quite broad"; [316] modern-day theorist Robert B. Reich suggests debate over the Commerce Clause continues today. [315]

    Advocates of states' rights, such as constitutional scholar Kevin Gutzman, have also criticized the court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be laboratories of democracy. [317] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." [318] Others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level." [319] More recently, the issue of federal power is central in the prosecution of Gamble v. United States , which is examining the doctrine of "separate sovereigns", whereby a criminal defendant can be prosecuted by a state court and then by a federal court. [320] [321]

    Ruling on political questions

    Some Court decisions have been criticized for injecting the court into the political arena, and deciding questions that are the purview of the elected branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election, awarding George W. Bush the presidency over Al Gore, received scrutiny as political based on the controversial justifications used by the 5 conservative justices to elevate a fellow conservative to the presidency. [322] [323] [324] [325] [326]

    Democratic backsliding

    Thomas Keck argues that because the Court has historically not served as a strong bulwark for democracy, the Roberts Court has the opportunity to go down in history as a defender of democracy. However, he believes that if the court shields Trump from criminal prosecution (after ensuring his access to the ballot), then the risks that come with an anti-democratic status-quo of the current court will outweigh the dangers that come from court reform (including court packing). [327] Aziz Z. Huq points to the blocking progress of democratizing institutions, increasing the disparity in wealth and power, and empowering an authoritarian white nationalist movement, as evidence that the Supreme Court has created a "permanent minority" incapable of democratic defeat. [328]

    Secretive proceedings

    The court has been criticized for keeping its deliberations hidden from public view. [329] [330] For example, the increasing use of a 'shadow docket' facilitates the court making decisions in secret without knowing how each Justice came to their decision. [331] [332] In 2024, after comparing the analysis of shadow-docket decisions to Kremlinology, Matt Ford called this trend of secrecy "increasingly troubling", arguing the court's power comes entirely from persuasion and explanation. [333]

    A 2007 review of Jeffrey Toobin's book compared the Court to a cartel where its inner-workings are mostly unknown, arguing this lack of transparency reduces scrutiny which hurts ordinary Americans who know little about the nine extremely consequential Justices. [322] A 2010 poll found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised. [334] [335]

    Too few cases

    Senator Arlen Specter argued the court should decide more cases. [336] Justice Scalia acknowledged in a 2009 interview that the number of cases that the court heard then was smaller than when he first joined the Supreme Court, but he also stated that he had not changed his standards for deciding whether to review a case, nor did he believe his colleagues had changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts. [337]

    Too slow

    British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to navigate their way through the system, their ability to restrain other branches is severely weakened. [338] [339] In contrast, various other countries have a dedicated constitutional court that has original jurisdiction on constitutional claims brought by persons or political institutions; for example, the Federal Constitutional Court of Germany, which can declare a law unconstitutional when challenged.

    Waning influence

    Adam Liptak wrote in 2008 that the court has declined in relevance in other constitutional courts. He cites factors like American exceptionalism, the relatively few updates to the constitution or the courts, the rightward shift of the court and the diminished stature of the United States abroad. [237]

    See also

    Selected landmark Supreme Court decisions

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    United States v. Arthrex, Inc., 594 U.S. ___ (2021), was a United States Supreme Court case related to the Appointments Clause of the United States Constitution as it related to patent judges on the Patent Trial and Appeal Board (PTAB). In a complex decision, the Court ruled that these judges were considered "primary officers" under the Appointments Clause, normally subject to appointment through the US President and the US Senate, but to remedy the matter, the Court ruled that the constitutional issue is resolved by allowing the PTAB decisions to be subject to review by the appropriately-appointed Director of the Patent Office.


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    13. Shugerman, Jed. "A Six-Three Rule: Reviving Consensus and Deference on the Supreme Court". Georgia Law Review . 37: 893.
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    15. Scott Douglas Gerber, ed. (1998). "Seriatim: The Supreme Court Before John Marshall". New York University Press. p. 3. ISBN   0-8147-3114-7. Archived from the original on May 11, 2011. Retrieved October 31, 2009. Finally many scholars cite the absence of a separate Supreme Court building as evidence that the early Court lacked prestige.
    16. Manning, John F. (2004). "The Eleventh Amendment and the Reading of Precise Constitutional Texts". Yale Law Journal. 113 (8): 1663–1750. doi:10.2307/4135780. JSTOR   4135780. Archived from the original on July 16, 2019. Retrieved July 16, 2019.
    17. Epps, Garrett (October 24, 2004). "Don't Do It, Justices". The Washington Post . Archived from the original on November 26, 2020. Retrieved October 31, 2009. The court's prestige has been hard-won. In the early 1800s, Chief Justice John Marshall made the court respected
    18. The Supreme Court had first used the power of judicial review in the case Ware v. Hylton , (1796), wherein it overturned a state law that conflicted with a treaty between the United States and Great Britain.
    19. Rosen, Jeffrey (July 5, 2009). "Black Robe Politics" (book review of Packing the Court by James MacGregor Burns). The Washington Post. Archived from the original on August 14, 2020. Retrieved October 31, 2009. From the beginning, Burns continues, the Court has established its "supremacy" over the president and Congress because of Chief Justice John Marshall's "brilliant political coup" in Marbury v. Madison (1803): asserting a power to strike down unconstitutional laws.
    20. "The People's Vote: 100 Documents that Shaped America – Marbury v. Madison (1803)". U.S. News & World Report . 2003. Archived from the original on September 20, 2003. Retrieved October 31, 2009. With his decision in Marbury v. Madison, Chief Justice John Marshall established the principle of judicial review, an important addition to the system of 'checks and balances' created to prevent any one branch of the Federal Government from becoming too powerful...A Law repugnant to the Constitution is void.
    21. Sloan, Cliff; McKean, David (February 21, 2009). "Why Marbury V. Madison Still Matters". Newsweek. Archived from the original on August 2, 2009. Retrieved October 31, 2009. More than 200 years after the high court ruled, the decision in that landmark case continues to resonate.
    22. "The Constitution in Law: Its Phases Construed by the Federal Supreme Court" (PDF). The New York Times. February 27, 1893. Archived (PDF) from the original on December 17, 2020. Retrieved October 31, 2009. The decision … in Martin vs. Hunter's Lessee is the authority on which lawyers and Judges have rested the doctrine that where there is in question, in the highest court of a State, and decided adversely to the validity of a State statute... such claim is reviewable by the Supreme Court ...
    23. Ginsburg, Ruth Bader; Stevens, John P.; Souter, David; Breyer, Stephen (December 13, 2000). "Dissenting opinions in Bush v. Gore". USA Today . Archived from the original on May 25, 2010. Retrieved December 8, 2019. Rarely has this Court rejected outright an interpretation of state law by a state high court … The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816).
    24. 1 2 "Decisions of the Supreme Court – Historic Decrees Issued in One Hundred and Eleven Years" (PDF). The New York Times. February 3, 1901. Archived (PDF) from the original on December 5, 2020. Retrieved October 31, 2009. Very important also was the decision in Martin vs. Hunter's lessee, in which the court asserted its authority to overrule, within certain limits, the decisions of the highest State courts.
    25. 1 2 "The Supreme Quiz". The Washington Post. October 2, 2000. Archived from the original on April 29, 2011. Retrieved October 31, 2009. According to the Oxford Companion to the Supreme Court of the United States, Marshall's most important innovation was to persuade the other justices to stop seriatim opinions—each issuing one—so that the court could speak in a single voice. Since the mid-1940s, however, there's been a significant increase in individual 'concurring' and 'dissenting' opinions.
    26. Slater, Dan (April 18, 2008). "Justice Stevens on the Death Penalty: A Promise of Fairness Unfulfilled". The Wall Street Journal . Archived from the original on August 14, 2020. Retrieved October 31, 2009. The first Chief Justice, John Marshall set out to do away with seriatim opinions–a practice originating in England in which each appellate judge writes an opinion in ruling on a single case. (You may have read old tort cases in law school with such opinions). Marshall sought to do away with this practice to help build the Court into a coequal branch.
    27. Suddath, Claire (December 19, 2008). "A Brief History of Impeachment". Time . Archived from the original on December 19, 2008. Retrieved October 31, 2009. Congress tried the process again in 1804, when it voted to impeach Supreme Court Justice Samuel Chase on charges of bad conduct. As a judge, Chase was overzealous and notoriously unfair … But Chase never committed a crime—he was just incredibly bad at his job. The Senate acquitted him on every count.
    28. Greenhouse, Linda (April 10, 1996). "Rehnquist Joins Fray on Rulings, Defending Judicial Independence". The New York Times. Archived from the original on May 11, 2011. Retrieved October 31, 2009. the 1805 Senate trial of Justice Samuel Chase, who had been impeached by the House of Representatives … This decision by the Senate was enormously important in securing the kind of judicial independence contemplated by Article III" of the Constitution, Chief Justice Rehnquist said
    29. Edward Keynes; Randall K. Miller (1989). "The Court vs. Congress: Prayer, Busing, and Abortion". Duke University Press. ISBN   0-8223-0968-8. Archived from the original on May 11, 2011. Retrieved October 31, 2009. (page 115)... Grier maintained that Congress has plenary power to limit the federal courts' jurisdiction.
    30. Ifill, Sherrilyn A. (May 27, 2009). "Sotomayor's Great Legal Mind Long Ago Defeated Race, Gender Nonsense". U.S. News & World Report. Retrieved October 31, 2009. But his decision in Dred Scott v. Sandford doomed thousands of black slaves and freedmen to a stateless existence within the United States until the passage of the 14th Amendment. Justice Taney's coldly self-fulfilling statement in Dred Scott, that blacks had "no rights which the white man [was] bound to respect," has ensured his place in history—not as a brilliant jurist, but as among the most insensitive
    31. Irons, Peter (2006). A People's History of the Supreme Court: The Men and Women Whose Cases and Decisions Have Shaped Our Constitution. United States: Penguin Books. pp.  176–177. ISBN   978-0-14-303738-5. The rhetorical battle that followed the Dred Scott decision, as we know, later erupted into the gunfire and bloodshed of the Civil War (p. 176)... his opinion (Taney's) touched off an explosive reaction on both sides of the slavery issue... (p. 177)
    32. "Liberty of Contract?". Exploring Constitutional Conflicts. October 31, 2009. Archived from the original on November 22, 2009. Retrieved October 31, 2009. The term 'substantive due process' is often used to describe the approach first used in Lochner—the finding of liberties not explicitly protected by the text of the Constitution to be impliedly protected by the liberty clause of the Fourteenth Amendment. In the 1960s, long after the Court repudiated its Lochner line of cases, substantive due process became the basis for protecting personal rights such as the right of privacy, the right to maintain intimate family relationships.
    33. "Adair v. United States 208 U.S. 161". Cornell University Law School. 1908. Archived from the original on April 24, 2012. Retrieved October 31, 2009. No. 293 Argued: October 29, 30, 1907 – Decided: January 27, 1908
    34. Bodenhamer, David J.; James W. Ely (1993). The Bill of Rights in modern America. Bloomington, Indiana: Indiana University Press. p. 245. ISBN   978-0-253-35159-3. Archived from the original on November 18, 2020. Retrieved October 29, 2020. … of what eventually became the 'incorporation doctrine,' by which various federal Bill of Rights guarantees were held to be implicit in the Fourteenth Amendment due process or equal protection.
    35. White, Edward Douglass. "Opinion for the Court, Arver v. U.S. 245 U.S. 366". Archived from the original on May 1, 2011. Retrieved March 30, 2011. Finally, as we are unable to conceive upon what theory the exaction by government from the citizen of the performance of his supreme and noble duty of contributing to the defense of the rights and honor of the nation, as the result of a war declared by the great representative body of the people, can be said to be the imposition of involuntary servitude in violation of the prohibitions of the Thirteenth Amendment, we are constrained to the conclusion that the contention to that effect is refuted by its mere statement.
    36. Siegan, Bernard H. (1987). The Supreme Court's Constitution. Transaction Publishers. p. 146. ISBN   978-0-88738-671-8. Archived from the original on February 20, 2021. Retrieved October 31, 2009. In the 1923 case of Adkins v. Children's Hospital, the court invalidated a classification based on gender as inconsistent with the substantive due process requirements of the fifth amendment. At issue was congressional legislation providing for the fixing of minimum wages for women and minors in the District of Columbia. (p. 146)
    37. Biskupic, Joan (March 29, 2005). "Supreme Court gets makeover". USA Today . Archived from the original on June 5, 2009. Retrieved October 31, 2009. The building is getting its first renovation since its completion in 1935.
    38. Justice Roberts (September 21, 2005). "Responses of Judge John G. Roberts, Jr. to the Written Questions of Senator Joseph R. Biden" (PDF). The Washington Post. Archived (PDF) from the original on September 30, 2015. Retrieved October 31, 2009. I agree that West Coast Hotel Co. v. Parrish correctly overruled Adkins. Lochner era cases—Adkins in particular—evince an expansive view of the judicial role inconsistent with what I believe to be the appropriately more limited vision of the Framers.
    39. Lipsky, Seth (October 22, 2009). "All the News That's Fit to Subsidize". The Wall Street Journal . Archived from the original on December 19, 2013. Retrieved October 31, 2009. He was a farmer in Ohio ... during the 1930s, when subsidies were brought in for farmers. With subsidies came restrictions on how much wheat one could grow—even, Filburn learned in a landmark Supreme Court case, Wickard v. Filburn (1942), wheat grown on his modest farm.
    40. Cohen, Adam (December 14, 2004). "What's New in the Legal World? A Growing Campaign to Undo the New Deal". The New York Times. Archived from the original on March 7, 2013. Retrieved October 31, 2009. Some prominent states' rights conservatives were asking the court to overturn Wickard v. Filburn, a landmark ruling that laid out an expansive view of Congress's power to legislate in the public interest. Supporters of states' rights have always blamed Wickard ... for paving the way for strong federal action...
    41. "Justice Black Dies at 85; Served on Court 34 Years". The New York Times. United Press International (UPI). September 25, 1971. Archived from the original on October 15, 2009. Retrieved October 31, 2009. Justice Black developed his controversial theory, first stated in a lengthy, scholarly dissent in 1947, that the due process clause applied the first eight amendments of the Bill of Rights to the states.
    42. "100 Documents that Shaped America Brown v. Board of Education (1954)". U.S. News & World Report. May 17, 1954. Archived from the original on November 6, 2009. Retrieved October 31, 2009. On May 17, 1954, U.S. Supreme Court Justice Earl Warren delivered the unanimous ruling in the landmark civil rights case Brown v. Board of Education of Topeka, Kansas. State-sanctioned segregation of public schools was a violation of the 14th amendment and was therefore unconstitutional. This historic decision marked the end of the "separate but equal" … and served as a catalyst for the expanding civil rights movement...
    43. "Essay: In defense of privacy". Time . July 15, 1966. Archived from the original on October 13, 2009. Retrieved October 31, 2009. The biggest legal milestone in this field was last year's Supreme Court decision in Griswold v. Connecticut, which overthrew the state's law against the use of contraceptives as an invasion of marital privacy, and for the first time declared the "right of privacy" to be derived from the Constitution itself.
    44. Gibbs, Nancy (December 9, 1991). "America's Holy War". Time . Archived from the original on November 2, 2007. Retrieved October 31, 2009. In the landmark 1962 case Engel v. Vitale, the high court threw out a brief nondenominational prayer composed by state officials that was recommended for use in New York State schools. 'It is no part of the business of government,' ruled the court, 'to compose official prayers for any group of the American people to recite.'
    45. Mattox, William R. Jr; Trinko, Katrina (August 17, 2009). "Teach the Bible? Of course". USA Today. Archived from the original on August 20, 2009. Retrieved October 31, 2009. Public schools need not proselytize—indeed, must not—in teaching students about the Good Book … In Abington School District v. Schempp, decided in 1963, the Supreme Court stated that "study of the Bible or of religion, when presented objectively as part of a secular program of education," was permissible under the First Amendment.
    46. "The Law: The Retroactivity Riddle". Time . June 18, 1965. Archived from the original on April 23, 2008. Retrieved October 31, 2009. Last week, in a 7 to 2 decision, the court refused for the first time to give retroactive effect to a great Bill of Rights decision—Mapp v. Ohio (1961).
    47. "The Supreme Court: Now Comes the Sixth Amendment". Time . April 16, 1965. Archived from the original on May 28, 2010. Retrieved October 31, 2009. Sixth Amendment's right to counsel (Gideon v. Wainwright in 1963). … the court said flatly in 1904: 'The Sixth Amendment does not apply to proceedings in state criminal courts.' But in the light of Gideon … ruled Black, statements 'generally declaring that the Sixth Amendment does not apply to states can no longer be regarded as law.'
    48. "Guilt and Mr. Meese". The New York Times. January 31, 1987. Archived from the original on May 11, 2011. Retrieved October 31, 2009. 1966 Miranda v. Arizona decision. That's the famous decision that made confessions inadmissible as evidence unless an accused person has been warned by police of the right to silence and to a lawyer, and waived it.
    49. Graglia, Lino A. (October 2008). "The Antitrust Revolution" (PDF). Engage. 9 (3). Archived from the original (PDF) on June 21, 2017. Retrieved February 6, 2016.
    50. Earl M. Maltz, The Coming of the Nixon Court: The 1972 Term and the Transformation of Constitutional Law (University Press of Kansas; 2016)
    51. O'Connor, Karen (January 22, 2009). "Roe v. Wade: On Anniversary, Abortion Is out of the Spotlight". U.S. News & World Report. Archived from the original on March 26, 2009. Retrieved October 31, 2009. The shocker, however, came in 1973, when the Court, by a vote of 7 to 2, relied on Griswold's basic underpinnings to rule that a Texas law prohibiting abortions in most situations was unconstitutional, invalidating the laws of most states. Relying on a woman's right to privacy...
    52. "Bakke Wins, Quotas Lose". Time . July 10, 1978. Archived from the original on October 14, 2010. Retrieved October 31, 2009. Split almost exactly down the middle, the Supreme Court last week offered a Solomonic compromise. It said that rigid quotas based solely on race were forbidden, but it also said that race might legitimately be an element in judging students for admission to universities. It thus approved the principle of 'affirmative action'…
    53. "Time to Rethink Buckley v. Valeo". The New York Times. November 12, 1998. Archived from the original on May 11, 2011. Retrieved October 31, 2009. ...Buckley v. Valeo. The nation's political system has suffered ever since from that decision, which held that mandatory limits on campaign spending unconstitutionally limit free speech. The decision did much to promote the explosive growth of campaign contributions from special interests and to enhance the advantage incumbents enjoy over underfunded challengers.
    54. 1 2 "Supreme Court Justice Rehnquist's Key Decisions". The Washington Post. June 29, 1972. Archived from the original on May 25, 2010. Retrieved October 31, 2009. Furman v. Georgia … Rehnquist dissents from the Supreme Court conclusion that many state laws on capital punishment are capricious and arbitrary and therefore unconstitutional.
    55. History of the Court, in Hall, Ely Jr., Grossman, and Wiecek (eds.) The Oxford Companion to the Supreme Court of the United States. Oxford University Press, 1992, ISBN   0-19-505835-6
    56. "A Supreme Revelation". The Wall Street Journal. April 19, 2008. Archived from the original on August 24, 2017. Retrieved October 31, 2009. Thirty-two years ago, Justice John Paul Stevens sided with the majority in a famous "never mind" ruling by the Supreme Court. Gregg v. Georgia, in 1976, overturned Furman v. Georgia, which had declared the death penalty unconstitutional only four years earlier.
    57. Greenhouse, Linda (January 8, 2009). "The Chief Justice on the Spot". The New York Times. Archived from the original on May 12, 2011. Retrieved October 31, 2009. The federalism issue at the core of the new case grows out of a series of cases from 1997 to 2003 in which the Rehnquist court applied a new level of scrutiny to Congressional action enforcing the guarantees of the Reconstruction amendments.
    58. Greenhouse, Linda (September 4, 2005). "William H. Rehnquist, Chief Justice of Supreme Court, Is Dead at 80". The New York Times. Archived from the original on April 2, 2015. Retrieved October 31, 2009. United States v. Lopez in 1995 raised the stakes in the debate over federal authority even higher. The decision declared unconstitutional a Federal law, the Gun Free School Zones Act of 1990, that made it a federal crime to carry a gun within 1,000 feet of a school.
    59. Greenhouse, Linda (June 12, 2005). "The Rehnquist Court and Its Imperiled States' Rights Legacy". The New York Times. Archived from the original on May 5, 2011. Retrieved October 31, 2009. Intrastate activity that was not essentially economic was beyond Congress's reach under the Commerce Clause, Chief Justice Rehnquist wrote for the 5-to-4 majority in United States v. Morrison.
    60. Greenhouse, Linda (March 22, 2005). "Inmates Who Follow Satanism and Wicca Find Unlikely Ally". The New York Times. Archived from the original on March 26, 2014. Retrieved October 31, 2009. His (Rehnquist's) reference was to a landmark 1997 decision, City of Boerne v. Flores, in which the court ruled that the predecessor to the current law, the Religious Freedom Restoration Act, exceeded Congress's authority and was unconstitutional as applied to the states.
    61. Amar, Vikram David (July 27, 2005). "Casing John Roberts". The New York Times. Archived from the original on October 14, 2008. Retrieved October 31, 2009. Seminole Tribe v. Florida (1996) In this seemingly technical 11th Amendment dispute about whether states can be sued in federal courts, Justice O'Connor joined four others to override Congress's will and protect state prerogatives, even though the text of the Constitution contradicts this result.
    62. Greenhouse, Linda (April 1, 1999). "Justices Seem Ready to Tilt More Toward States in Federalism". The New York Times. Archived from the original on May 11, 2011. Retrieved October 31, 2009. The argument in this case, Alden v. Maine, No. 98-436, proceeded on several levels simultaneously. On the surface … On a deeper level, the argument was a continuation of the Court's struggle over an even more basic issue: the Government's substantive authority over the states.
    63. Lindenberger, Michael A. "The Court's Gay Rights Legacy". Time . Archived from the original on June 29, 2008. Retrieved October 31, 2009. The decision in the Lawrence v. Texas case overturned convictions against two Houston men, whom police had arrested after busting into their home and finding them engaged in sex. And for the first time in their lives, thousands of gay men and women who lived in states where sodomy had been illegal were free to be gay without being criminals.
    64. Justice Sotomayor (July 16, 2009). "Retire the 'Ginsburg rule' – The 'Roe' recital". USA Today. Archived from the original on August 22, 2009. Retrieved October 31, 2009. The court's decision in Planned Parenthood v. Casey reaffirmed the court holding of Roe. That is the precedent of the court and settled, in terms of the holding of the court.
    65. Kamiya, Gary (July 5, 2001). "Against the Law". Salon . Retrieved November 21, 2012. ...the remedy was far more harmful than the problem. By stopping the recount, the high court clearly denied many thousands of voters who cast legal votes, as defined by established Florida law, their constitutional right to have their votes counted. … It cannot be a legitimate use of law to disenfranchise legal voters when recourse is available. …{{cite news}}: CS1 maint: url-status (link)
    66. Krauthammer, Charles (December 18, 2000). "The Winner in Bush v. Gore?". Time . Archived from the original on November 22, 2010. Retrieved October 31, 2009. Re-enter the Rehnquist court. Amid the chaos, somebody had to play Daddy. … the Supreme Court eschewed subtlety this time and bluntly stopped the Florida Supreme Court in its tracks—and stayed its willfulness. By, mind you, …
    67. MacDougall, Ian (November 1, 2020). "Why Bush v. Gore Still Matters in 2020". ProPublica. Retrieved March 18, 2024.
    68. Payson-Denney, Wade (October 31, 2015). "So, who really won? What the Bush v. Gore studies showed | CNN Politics". CNN. Retrieved March 18, 2024.
    69. Babington, Charles; Baker, Peter (September 30, 2005). "Roberts Confirmed as 17th Chief Justice". The Washington Post. Archived from the original on January 16, 2010. Retrieved November 1, 2009. John Glover Roberts Jr. was sworn in yesterday as the 17th chief justice of the United States, enabling President Bush to put his stamp on the Supreme Court for decades to come, even as he prepares to name a second nominee to the nine-member court.
    70. Greenhouse, Linda (July 1, 2007). "In Steps Big and Small, Supreme Court Moved Right". The New York Times. Archived from the original on April 17, 2009. Retrieved November 1, 2009. It was the Supreme Court that conservatives had long yearned for and that liberals feared … This was a more conservative court, sometimes muscularly so, sometimes more tentatively, its majority sometimes differing on methodology but agreeing on the outcome in cases big and small.
    71. Liptak, Adam (July 24, 2010). "Court Under Roberts Is Most Conservative in Decades". The New York Times. Archived from the original on August 24, 2021. Retrieved February 1, 2019. When Chief Justice John G. Roberts Jr. and his colleagues on the Supreme Court left for their summer break at the end of June, they marked a milestone: the Roberts court had just completed its fifth term. In those five years, the court not only moved to the right but also became the most conservative one in living memory, based on an analysis of four sets of political science data.
    72. Caplan, Lincoln (October 10, 2016). "A new era for the Supreme Court: the transformative potential of a shift in even one seat". The American Prospect. Archived from the original on February 2, 2019. Retrieved February 1, 2019. The Court has gotten increasingly more conservative with each of the Republican-appointed chief justices—Warren E. Burger (1969–1986), William H. Rehnquist (1986–2005), and John G. Roberts Jr. (2005–present). All told, Republican presidents have appointed 12 of the 16 most recent justices, including the chiefs. During Roberts's first decade as chief, the Court was the most conservative in more than a half-century and likely the most conservative since the 1930s.
    73. Savage, Charlie (July 14, 2009). "Respecting Precedent, or Settled Law, Unless It's Not Settled". The New York Times . Archived from the original on May 11, 2011. Retrieved November 1, 2009. Gonzales v. Carhart—in which the Supreme Court narrowly upheld a federal ban on the late-term abortion procedure opponents call "partial birth abortion"—to be settled law.
    74. "A Bad Day for Democracy". The Christian Science Monitor . January 22, 2010. Archived from the original on January 25, 2010. Retrieved January 22, 2010.
    75. Barnes, Robert (October 1, 2009). "Justices to Decide if State Gun Laws Violate Rights". The Washington Post. Archived from the original on April 23, 2018. Retrieved November 1, 2009. The landmark 2008 decision to strike down the District of Columbia's ban on handgun possession was the first time the court had said the amendment grants an individual right to own a gun for self-defense. But the 5 to 4 opinion in District of Columbia v. Heller...
    76. Greenhouse, Linda (April 18, 2008). "Justice Stevens Renounces Capital Punishment". The New York Times . Archived from the original on December 11, 2008. Retrieved November 1, 2009. His renunciation of capital punishment in the lethal injection case, Baze v. Rees, was likewise low key and undramatic.
    77. Greenhouse, Linda (June 26, 2008). "Supreme Court Rejects Death Penalty for Child Rape". The New York Times . Archived from the original on September 13, 2019. Retrieved November 1, 2009. The death penalty is unconstitutional as a punishment for the rape of a child, a sharply divided Supreme Court ruled Wednesday … The 5-to-4 decision overturned death penalty laws in Louisiana and five other states.
    78. McGinnis, John O. "Essays on Article II: Appointments Clause". The Heritage Guide To The Constitution. Heritage Foundation. Archived from the original on August 22, 2020. Retrieved June 19, 2019.
    79. "Qualifications To Become A Supreme Court Justice". The Law Dictionary. Archived from the original on July 8, 2023. Retrieved July 8, 2023.
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    81. "United States Senate. "Nominations"". Archived from the original on April 7, 2019. Retrieved February 16, 2018.
    82. Brunner, Jim (March 24, 2017). "Sen. Patty Murray will oppose Neil Gorsuch for Supreme Court". The Seattle Times . Archived from the original on April 10, 2017. Retrieved April 9, 2017. In a statement Friday morning, Murray cited Republicans' refusal to confirm or even seriously consider President Obama's nomination of Judge Merrick Garland, a similarly well-qualified jurist – and went on to lambaste President Trump's conduct in his first few months in office. [...] And Murray added she's 'deeply troubled' by Gorsuch's 'extreme conservative perspective on women's health', citing his 'inability' to state a clear position on Roe v. Wade, the landmark abortion-legalization decision, and his comments about the 'Hobby Lobby' decision allowing employers to refuse to provide birth-control coverage.
    83. Flegenheimer, Matt (April 6, 2017). "Senate Republicans Deploy 'Nuclear Option' to Clear Path for Gorsuch". The New York Times . Archived from the original on October 2, 2018. Retrieved April 7, 2017. After Democrats held together Thursday morning and filibustered President Trump's nominee, Republicans voted to lower the threshold for advancing Supreme Court nominations from 60 votes to a simple majority.
    84. "U.S. Senate: Supreme Court Nominations, Present-1789". United States Senate. Archived from the original on December 9, 2020. Retrieved April 8, 2017.
    85. See 5 U.S.C.   § 2902.
    86. 28 U.S.C.   § 4. If two justices are commissioned on the same date, then the oldest one has precedence.
    87. Mears, Bill (August 6, 2010). "Facts about Supreme Court oath ceremonies". CNN. Archived from the original on May 17, 2022. Retrieved May 17, 2022.
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    89. "Justices 1789 to Present". Supreme Court of the United States. Archived from the original on April 15, 2010. Retrieved May 17, 2022.
    90. Balkin, Jack M. "The passionate intensity of the confirmation process". Jurist. Archived from the original on December 18, 2007. Retrieved February 13, 2008.
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