Supreme Court History
He states, “Congress and the president enact laws, the president executes the laws, and the Supreme Court decides cases arising under those laws or under the Constitution.”
A simple definition of the chief justice, perhaps, but the road to defining the modern Supreme Court as the pinnacle of the American justice system has been a hard-fought and controversial journey.
With its constitutional foundations in tow, the high court has faced challenges the founding fathers could never have imagined. But it also has safeguarded many of the traditions that have helped keep it one of the most revered courts in the world.
History of the Early Court
“The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”
Thus begins Article III, Section I of the United States Constitution — the essential framework on which the U.S. Supreme Court and the federal judiciary rest. While this part of the Constitution established the Supreme Court’s basic tenets, the framers left many of the details of the high court’s exact powers to be determined by Congress and the court itself.
The federal court system was born with the Senate Judiciary Act of 1789. The act split the country into 13 judicial districts and created a corresponding network of courts and the office of U.S. attorney general. It also more clearly defined the Supreme Court as having one chief justice and five associate justices.
According to the terms of the Constitutional Convention, justices are nominated by the president and confirmed by the Senate. A justice serves on the court for life and can only be removed through impeachment on extreme grounds such as treason, bribery or other so-called high crimes. Only one justice has ever been removed by impeachment in the court’s history to date.
President George Washington nominated Chief Justice John Jay and the five other original high court justices after signing the Judiciary Act into law. The first Supreme Court session assembled on Feb. 2, 1790 in New York City. Due to travel difficulties — and perhaps some doubt about the court’s initial importance — only three of the six justices were present for the court’s opening session and official business had to wait for a fourth justice to arrive.
In 1791, the Supreme Court relocated to Philadelphia before finally coming to rest in its permanent home of the nation’s capital, Washington, D.C., in 1800.
During the court’s early years, justices were required to travel around the country and hold circuit court twice a year in each judicial district. Travel routes were difficult and it could take the judges nearly 20 hours to get from city to city. Congress decided in 1793 that one circuit trip per year would suffice, but the duty wasn’t completely abolished until the late 19th century.
The early years of the court were primarily spent organizing and determining responsibilities — many scholars consider this to be a slow and ambiguous period in the court’s history as the judiciary struggled to get off the ground. The court didn’t actually hear a case until 1792, two years into its tenure and didn’t announce a major decision until Chisolm v. Georgia in 1793.
Initially, the judiciary was considered among the weakest and most obscure of the three branches of federal government. In fact, Alexander Hamilton called the Supreme Court the “least dangerous” of the branches in No. 78 of the Federalist Papers. That perception changed in large part after the 1801 appointment of Chief Justice John Marshall.
Appointed by President John Adams, Marshall is generally credited with harnessing and defining the power of the high court in such influential decisions as Marbury v. Madison, which allowed the court to evaluate the constitutionality of congressional legislation. Of the pivotal chief justice, President Adams is quoted by the Supreme Court Historical Society as saying, “My gift of John Marshall to the people of the United States was the proudest act of my life.”
The number of Supreme Court justices has changed six times as the demands and needs of the high court grew. Congress passed an act in 1948 establishing permanently the current composition of one Chief Justice and eight associate justices as part of its responsibility to assess and change the number of justices as necessary.
Terms and Traditions
Several closely guarded traditions are key to the function and image of the Supreme Court, and they have endured over the past two centuries. Most critical of these is the ability of the court to keep a private and tightly run ship while protecting its authority over the laws that govern the American public.
In accordance with legal statute, the Supreme Court term begins every year on the first Monday in October. The term generally lasts until late June. Terms used to officially “end” once the court had resolved all its current business, but due to the unpredictable need for the court to be called into action under special circumstances, terms were extended technically through the summer until thebeginning of the next term.
The high court’s sessions are generally divided between “sittings,” during which justices hear arguments and issue decisions, and “recesses,” during which they attend to other court business while discussing and constructing opinions or dissents.
Since around 1800, the nine justices have worn traditional black judge’s robes while hearing arguments or when appearing in an official capacity representing the court. In chambers, they sit around a crescent shaped judges bench in order of seniority — chief justice in the center and the eight associate justices staggered on his right and left based on their tenure on the court. Seniority is an important tradition in the court and provides order for much of the court’s procedure and the justice’s work, including what order they vote and speak during case conferences.
Justices also participate in the traditional “conference handshake” when they assemble to enter an argument session. All justices shake hands as they gather to enter the court, a tradition established by Chief Justice Melville Fuller in the late 1800s to symbolize the cohesiveness of all the judges in the court’s purpose, despite differences they may have in ideology. Justices partake in a similar conference handshake when meeting to review petitions before the court or voting to decide cases.
In earlier times, lawyers would wear formal “morning clothes” when addressing the high court, one tradition that has ebbed in modern times. According to the Supreme Court Historical Society, only lawyers from the Department of Justice or other lawyers representing the government still follow the formal dress tradition.
White quill pens are also a signature element of the Supreme Court. They are placed on counsel tables and are a popular souvenir for attorneys that have the opportunity to address the court.
Scheduled argument sessions begin promptly at 10 a.m. on Mondays, Tuesdays and Wednesdays with the court marshall calling, “The honorable, the chief justice and the associate justices of the Supreme Court of the United States.”
As the justices enter the court, the Marshall gives the traditional call for silence, or “Oyez! Oyez! Oyez! All persons having business before the honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the court is now sitting. God save the United States and this honorable court.”
Generally, two cases are heard per argument day. Since 1955 oral argument sessions have been taped to provide an audio record, but video cameras or any kind of photography is forbidden inside the courtroom.
Above all, the court’s secrecy could be considered its best-kept tradition. Of the numerous Washington government agencies, it remains virtually leak proof, with a loyal staff and tight security. Indeed the most insight into the court’s procedures come from the writings and remarks of the justices, such as the papers of the late Justice Thurgood Marshall, which are considered a wealth of information on the inner workings of the court.
Choosing and Hearing Cases
The Supreme Court’s caseload has increased steadily over the decades, but the process by which justices choose which cases to hear remains uniquely their own — and is considered by some to be the most important aspect of the high court’s review process.
The court regularly receives some 7,000 cases submitted for its review, most commonly in the form of requests for “writs of certiorari,” which are petitions from one or both sides of a case asking for the high court’s review. If the court decides to accept the petition, a “writ of cert” is issued, which essentially asks the appellate court to send their records to the Supreme Court for further review. In rare cases of great public importance, the high court can issue a writ of cert even before the lower court has heard the case.
In addition to the regularly submitted petitions, the justices also receive some 1,200 applications for various types of legal action each year. Applications, which are addressed to each justice based on the federal judicial circuit they are assigned, can be acted upon individually by the justices and usually involve some type of emergency action such as a stay of execution or an urgent restraining order.
The case screening process beings with the clerk of the court who examines each petition to ensure it is in proper form to be reviewed. The case then proceeds to the court’s law clerks — four handpicked staffers per justice who are usually top law school graduates or junior staffers at prestigious law firms, chosen to assist each justice for one term. The clerks begin the task of sorting through the petitions and determining which cases fall within the court’s jurisdiction and raise questions of appropriate constitutional and legal importance to merit the justices’ review.
Most of the justices gather their clerks together to form a “cert pool” to review the petitions. This process helps the busy law clerk staff to divide among themselves the task of writing memorandums analyzing the facts of worthy petitions. These memos go on to aid the justices in their decision on how to vote on a case’s fate.
After passing through the clerks, a petition then moves to consideration by the full complement of justices. Meeting in a closed conference room, the justices discuss which cases they believe are worthy of full deliberation and then vote aloud to determine the petition’s fate.
Under the so-called “Rule of Four,” at least four justices must vote to hear the case for it to move on to the docket. The most junior justice takes handwritten notes that will go on to produce the public announcement of the court’s order on the petition.
“Whether or not to vote to grant certiorari strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment,” Chief Justice William Rehnquist writes in his book, The Supreme Court. “One factor that plays a large part with every member of the Court is whether the case sought to be reviewed has been decided differently from a very similar case coming from another lower court: If it has, its chances for being reviewed are much greater than if it hasn’t.”
Justices who disagree with a majority decision to reject a case can issue a statement expressing their viewpoint, called a “Term Opinion Relating to Orders.”
Of the more than 7,000 petitions it receives, the court generally accepts about 150 cases for full review. Some three-quarters of the decisions on those cases are issued as fully published opinions.
“Most high courts in other nations do not have discretion, such as we enjoy, in selecting the cases that the high court reviews. Our court is virtually alone in the amount of discretion it has,” Justice Sandra Day O’Connor said in an interview with three Cardozo University law professors in 2000.
“We are constantly grateful that Congress has seen fit to give the court that amount of discretion. We would drown in cases otherwise — cases that neither warrant nor merit the attention of the nine-member court,” O’Connor added.
Cases that are accepted for full court deliberation are next scheduled for oral arguments. Lawyers for each side of the case are given a strict 30-minute time limit during which to address the justices. Generally, the attorneys can expect direct and constant questions throughout their appearance before the high court. For most attorneys, addressing the Supreme Court is considered a major career distinction.
For the most part, oral arguments are considered a crucial stage of the process. In the book “The Supreme Court at Work” by Joan Biskupic and Elder Witt, the late Justice William Brennan is quoted as saying, “Oral argument is the absolute indispensable ingredient of appellate advocacy. … Often my whole notion of what a case is about crystallizes at oral argument. This happens even though I read the briefs before oral argument.”
The Decision Process
After the Supreme Court’s nine justices hear oral arguments, the decision process begins behind the closed doors of conference rooms.
The justices typically meet on Wednesdays and Fridays to vote on cases heard that week as well as consider new motions or petitions. Only justices attend these closed meetings, and the most junior justice will send for needed materials and take notes as necessary.
After voting, the most senior justice in the majority is responsible for deciding who will write the court’s opinion while the most senior justice on the minority side will also assign the dissent writer. In some cases, individual justices choose to add their own statements explaining why they voted for either viewpoint or express their disagreements with the way the majority opinion was written. But it is solely the majority opinion that will represent the decision of the court.
In his book, “The Supreme Court,” Chief Justice William Rehnquist explains the decision process: “Each member of the Court has done such work as he deems necessary to arrive at his own views before coming into the conference; it is not a bull session in which off-the-cuff reactions are traded, but instead a discussion in which considered views are stated.”
For most of the justices, law clerks again play an important role in opinion drafting, conducting research and assisting at various stages of the revision process. During the process, the justices and their staffs often call upon the resources of the vast Supreme Court library, which contains more than 500,000 volumes of legal reference materials.
Justices have no timetable for when an opinion has to be issued, and they may spend months considering and honing opinions. Justices may also be pulled away to attend to other business in their assigned judicial circuit as opinions are hammered out, further lengthening the process.
Opinions and dissents are often written with great passion for their viewpoints, with justices occasionally trading barbs about each other’s views on an issue. Clashes tend to arise over individual methodologies of interpreting the Constitution coupled with differences in basic judicial ideologies.
According to court writings, justices can be swayed to one side of an argument or another as the opinion starts to take shape. Drafts are circulated as decisions evolve and a court opinion may have to be rewritten several times in order for a majority to retain all of its voters.
Assigned to write the majority opinion in a 1990 criminal case, Justice John Paul Stevens wrote to Chief Justice Rehnquist: “Dear Chief: Having been a specialist in converting draft majority opinions into dissents since my first term on the court, I can assure you that I will produce a draft with all deliberate speed.”
True to form, Stevens ultimately wound up in the dissent on the case, according to The Washington Post.
After all revisions and corrections are complete, a master proof is sent for printing under tight security. When the opinion is released, the court’s reporter of decisions writes a short summary, called “syllabus,” to encapsulate the opinions.
Justices will then briefly appear in the courtroom to announce the court’s opinion, occasionally reading portions of the opinion’s text. Dissenters are also given a chance to comment, an event that can produce exciting moments in the court’s chambers if justices choose to explain their position on a case.
A full term’s worth of written opinions, including dissents and orders, can amount to as many as 5,000 pages, according to Supreme Court records. The court’s opinion on a case is final — there can be no further appeals or exceptions, although issues sometimes return to the high court years later, where new justices may offer a different ruling on the same matter.