Vintage Supreme Court Justice Hugo Black Autograph Ink Signed Ink Paper

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From a rural county and a humble beginning, Hugo LaFayette Black refused to let his past dictate his future. Black was born on February 27, 1886, in Harlan, Alabama. He was the eighth and last child of Martha Toland and William Black, who lived on a farm for the first three years of Black’s life. Black’s mother greatly valued education and ran a strict house. She made their clothes, milked the cows, and tended to her garden. His father was a prosperous storekeeper who earned a good living. After the family moved to Ashland, Alabama, the children were able to attend a good school. Black spent much of his time playing sports and games like horseshoe. However, he also had the same sense of business as his father. At the age of six, he started to watch lawyers present their cases, often wondering how he might have asked the same question differently or presented the issue. Black was a gifted student with a reading level beyond his years. His love of books came from his mother, who also taught him to love gardening. He attended Ashland College, a combination high school and junior college, and upon graduation enrolled in Birmingham Medical College in 1903 at the age of 17. Black discovered medicine was not his calling and enrolled in the two-year program of the University of Alabama Law School in 1904. Since Black skipped pre-law college training and was the youngest in the class, he was also the least qualified law student. He didn’t let this deter him; instead he used it as a motivator. He graduated in 1906 on the honors list and was admitted to the bar. Black returned to Ashland to open up his own office with great diligence and little money. He had few clients his first year, and in 1907 his office burnt down along with all his law books. He had no insurance and was nearly penniless except for the interest in his father’s old store. He took this capital with him to Birmingham to start over. Cramped in a shared bedroom and a small office, Black began to earn his name in the town. His break came when he represented an African-American laborer who was forced to work beyond his prison sentence. A judge was impressed with his skills as a lawyer and asked him to serve as a police court judge for the city of Birmingham. He was in this position from 1911 to 1912 but decided to leave the job because of its little importance. He returned to practice law and, with the exception of a large insurance company, his clients were always small businesses or individuals. Black became skilled at examining witnesses, and in 1914 he ran for prosecuting attorney. Elected in December, he remembered that time as the “hottest years of his life” with more pressure and hostility than any other job he would hold in the future. He pledged to clean up the docket and kept a fast pace with convictions to do so. By the time he left office to volunteer for the army, the docket was up to date. He served as artillery captain within the U.S. during WWI, but he was discharged before his promotion to major could be set in place. Black reentered practice in 1918, and soon after he met Josephine Foster at a Birmingham dance. They married in 1921. Between 1920 and 1925, Black’s practice was thriving. One of the most sensational cases he handled was the trial of a Methodist minister for murdering a Catholic priest. Black was a liberal lawyer who argued it was self-defense, and true to his track record, he won. On September 11, 1923, Black joined the KKK after weighing the decision for over a year. Though he had never engaged in racial discrimination and often ruled in favor of African-Americans, he believed the membership would gain him political advancement. He resigned in 1925 at the beginning of his campaign for Alabama senator. Once again, Black found himself the youngest and least experienced in a competitive field. But he was viewed as a sympathizer to the common people because of his humble roots, and on December 5, 1927, he was sworn in as an Alabama Senator. Black was quite active in committees and on the floor, and he fought for legislation to ensure fair labor and minimum wage. In 1935, he became chairman of the Senate Committee on Education and Labor. Black’s diligence and support of presidential policy gained him the attention of President Roosevelt for a Supreme Court appointment. Roosevelt felt that Black was needed more in the chamber than on the Senate floor, and Black was sworn in as an Associate Justice on August 18, 1937. Black’s persistence of the issues he thought important often frustrated his colleagues. Though Black was a controversial member, he was also one of its most intelligent leaders. He relied greatly on historical intent, which was evident from his opinions regarding the Fourteenth Amendment that limited judicial discretion. He came to the bench with positivist jurisprudence and a literalist interpretation of the First Amendment. However, he did not believe this extended to symbolic speech and recognized the government’s power to deny people the freedom to express ideas. Aside from his strict interpretation of the Constitution, he was generally an activist and a liberal. Over the last 10 years of his term though, he gradually became more conservative, dissenting often with the liberal court of Chief Justice Earl Warren. Upon reflection of his term, he stated that his dissent in Adamson v. California (1947), about whether the Fifth Amendment is protected by the Fourteenth Amendment, was his most important contribution; though he also spoke highly of earlier opinion in Chambers v. Florida (1940), another Fourteenth Amendment case. He left office in 1971 following a stroke. He passed away eight days later, after serving 34 years on the Court. Hugo Lafayette Black (February 27, 1886 – September 25, 1971) was an American lawyer, politician, and jurist who served as a U.S. Senator from 1927 to 1937 and as an Associate Justice of the Supreme Court of the United States from 1937 to 1971. A member of the Democratic Party and a devoted New Dealer,[3] Black endorsed Franklin D. Roosevelt in both the 1932 and 1936 presidential elections.[4] Having gained a reputation in the Senate as a reformer, Black was nominated to the Supreme Court by President Roosevelt and confirmed by the Senate by a vote of 63 to 16 (six Democratic Senators and 10 Republican Senators voted against him). He was the first of nine Roosevelt appointees to the Court,[5] and he outlasted all except for William O. Douglas.[6] The fifth longest-serving justice in Supreme Court history, Black was one of the most influential Supreme Court justices in the 20th century. He is noted for his advocacy of a textualist reading of the United States Constitution and of the position that the liberties guaranteed in the Bill of Rights were imposed on the states ("incorporated") by the Fourteenth Amendment. During his political career, Black was regarded[by whom?] as a staunch supporter of liberal policies and civil liberties.[7] During World War II, Black wrote the majority opinion in Korematsu v. United States (1944), which upheld the Japanese-American internment that had taken place. Black opposed the doctrine of substantive due process (the anti-New Deal Supreme Court's interpretation of this concept made it impossible for the government to enact legislation that conservatives claimed interfered with the ostensible freedom of business owners)[4]: 107–108  and believed that there was no basis in the words of the Constitution for a right to privacy, voting against finding one in Griswold v. Connecticut (1965).[4]: 241–242  Before he became a U.S. Senator (D-AL), Black espoused anti-Catholic views and was a member of the Ku Klux Klan in Alabama, but he resigned in 1925.[8] In 1937, upon being appointed to the Supreme Court, Black said: "Before becoming a Senator I dropped the Klan. I have had nothing to do with it since that time. I abandoned it. I completely discontinued any association with the organization."[9] Black served as the Secretary of the Senate Democratic Conference and the Chair of the Senate Education Committee during his decade in the Senate. Contents 1 Early years 2 Senate career 3 Appointment to the Supreme Court 4 Supreme Court career 4.1 Relationship with other justices 4.2 1950s and beyond 5 Jurisprudence 5.1 Judicial restraint 5.2 Textualism and originalism 5.3 Federalism 5.4 Civil rights 5.5 First Amendment 5.6 Criminal procedure 5.7 Bill of Rights applicable to states, or "incorporation" question 5.8 Due process clause 5.9 Voting rights 5.10 Equal Protection Clause 6 Retirement and death 7 Ku Klux Klan and anti-Catholicism 7.1 Thurgood Marshall and Brown v. Board of Education 7.2 United States v. Price 8 Legacy 9 See also 10 References 11 Further reading 11.1 Primary sources 12 External links Early years Hugo LaFayette Black was in Harlan, Clay County, Alabama on February 27, 1886, the youngest of eight children born to William Lafayette Black and Martha (Toland) Black. In 1890 the family moved to Ashland, the county seat.[2] Black attended Ashland College, an academy located in Ashland, then enrolled at the University of Alabama School of Law. He graduated in 1906 with an LL.B. degree, was admitted to the bar, and began to practice in Ashland. In 1907, Black moved to the growing city of Birmingham, where he built a successful practice that specialized in labor law and personal injury cases.[2] As a consequence of his defense of an African American who was forced into a form of commercial slavery after incarceration, Black was befriended by A. O. Lane, a judge connected with the case. When Lane was elected to the Birmingham City Commission in 1911, he asked Black to serve as a police court judge – his only judicial experience prior to the Supreme Court. In 1912, Black resigned in order to return to practicing law full time. In 1914, he began a four-year term as the Jefferson County Prosecuting Attorney.[2] During World War I, Black resigned in order to join the United States Army. He served in the 81st Field Artillery, and attained the rank of captain as the regimental adjutant. When the regiment departed for France, its commander was ordered to return to Fort Sill to organize and train another regiment, and he requested Black as his adjutant. The war ended before Black's new unit departed the United States, and he returned to law practice.[10] He joined the Birmingham Civitan Club during this time, eventually serving as president of the group.[11] He remained an active member throughout his life, occasionally contributing articles to Civitan publications.[12] In the early 1920s, Black became a member of the Robert E. Lee Klan No. 1 in Birmingham, and he resigned in 1925.[13] In 1937, after his confirmation to the supreme court, it was reported he had been given a "grand passport" in 1926, granting him life membership to the Ku Klux Klan.[13] In response to this news, Black said he had never used the passport and had not kept it.[14] He further stated that when he resigned he completely discontinued his Klan association, that he had never resumed it, and that he expected never to resume his membership.[14] On February 23, 1921, he married Josephine Foster (1899–1951), with whom he had three children: Hugo L. Black, II (1922–2013), an attorney; Sterling Foster (1924–1996), and Martha Josephine (born 1933). Josephine died in 1951; in 1957, Black married Elizabeth Seay DeMeritte.[15] Senate career Black during his Senate tenure In 1926, Black sought election to the United States Senate from Alabama, following the retirement of Senator Oscar Underwood. Since the Democratic Party had dominated Alabama politics since disenfranchising most blacks (and Republicans) at the turn of the century, Black easily defeated his Republican opponent, E. H. Dryer, winning 80.9% of the white vote. He was reelected in 1932, winning 86.3% of the vote against Republican J. Theodore Johnson.[16] Senator Black gained a reputation as a tenacious investigator. In 1934, he chaired the committee that looked into the contracts awarded to air mail carriers under Postmaster General Walter Folger Brown, an inquiry which led to the Air Mail scandal. In order to correct what he termed abuses of "fraud and collusion" resulting from the Air Mail Act of 1930, he introduced the Black-McKellar Bill, later the Air Mail Act of 1934. The following year he participated in a Senate committee's investigation of lobbying practices. He publicly denounced the "highpowered, deceptive, telegram-fixing, letterframing, Washington-visiting" lobbyists, and advocated legislation requiring them to publicly register their names and salaries.[17] In 1935, during the Great Depression, Black became chairman of the Senate Committee on Education and Labor, a position he would hold for the remainder of his Senate career. On August 8, 1935, Senator Black, who was chairman of the senate committee investigating lobbying activities, went on the National Broadcasting Company's National Radio Forum. The national audience was shocked to hear Black speak of a $5 million electric industry lobbying campaign attempt to defeat the Wheeler-Rayburn bill, known as the Public Utility Holding Company Act of 1935 that had passed in July. The act directed the Securities and Exchange Commission to close down the country's corrupt electric holding companies. The newspaper article of Black's dramatic speech over what was the largest political battle of its kind in the U.S., running from 1920 to 1960, can be found here.[18] In 1937 he sponsored the Black-Connery Bill, which sought to establish a national minimum wage and a maximum workweek of thirty hours.[19] Although the bill was initially rejected in the House of Representatives, an amended version of it, which extended Black's original maximum workweek proposal to forty-four hours,[19] was passed in 1938 (after Black left the Senate), becoming known as the Fair Labor Standards Act.[19] Black was an ardent supporter of President Franklin D. Roosevelt and the New Deal.[4]: 91  In particular, he was an outspoken advocate of the Judiciary Reorganization Bill of 1937, popularly known as the court-packing bill, FDR's unsuccessful plan to expand the number of seats on the Supreme Court in his favor.[4]: 90–91  Throughout his career as a senator, Hugo L. Black gave speeches based on his belief in the ultimate power of the Constitution.[4]: 106  He came to see the actions of the anti-New Deal Supreme Court as judicial excess; in his view, the Court was improperly overturning legislation that had been passed by large majorities in Congress.[4][page needed] During his Senate career, Black consistently opposed the passage of anti-lynching legislation, as did all of the white Democrats of the Solid South.[20] In 1935 Black led a filibuster of the Wagner-Costigan anti-lynching bill.[21] The Pittsburgh Post Gazette reported that when a motion to end the filibuster was defeated, "[t]he southerners—headed by Tom Connally of Texas and Hugo Black of Alabama—grinned at each other and shook hands."[22] Appointment to the Supreme Court 1937 poster protesting Black's appointment as Senator due to his Klan background. Soon after the failure of the court-packing plan, President Roosevelt obtained his first opportunity to appoint a Supreme Court Justice when conservative Willis Van Devanter retired. Roosevelt wanted the replacement to be a "thumping, evangelical New Dealer" who was reasonably young, confirmable by the Senate, and from a region of the country unrepresented on the Court.[4]: 90  The three final candidates were Solicitor General Stanley Reed, Sherman Minton, and Hugo Black.[4] Roosevelt said Reed "had no fire," and Minton did not want the appointment at the time.[4][page needed] The position would go to Black, a candidate from the South, who, as a senator, had voted for all 24 of Roosevelt's major New Deal programs.[4][page needed] Roosevelt admired Black's use of the investigative role of the Senate to shape the American mind on reforms, his strong voting record, and his early support, which dated back to 1933.[4]: 92  Both Reed and Minton were later appointed to the Supreme Court; Reed was the next Justice appointed by Roosevelt,[23] while Minton was appointed by Harry Truman in 1949.[24] On August 12, 1937, Roosevelt nominated Black to fill the vacancy. By tradition, a senator nominated for an executive or judicial office was confirmed immediately and without debate.[4]: 94  However, when Black was nominated, the Senate departed from this tradition for the first time since 1853; instead of confirming him immediately, it referred the nomination to the Judiciary Committee. Black was criticized for his presumed bigotry, his cultural roots, and his Klan membership, when that became public.[4]: 94–95  But Black was a close friend of Walter Francis White, the black executive secretary of the NAACP, who helped assuage critics of the appointment. Chambers v. Florida (1940), an early case where Black ruled in favor of African-American criminal defendants who experienced due process violations, later helped put these concerns to rest.[4]: 104–105  The Judiciary Committee recommended Black by a vote of 13–4 on August 16,[13] and the full Senate considered his nomination the next day. Rumors of Black's involvement in the Ku Klux Klan surfaced, and two Democratic senators tried defeating the nomination. But no conclusive evidence was available at the time, and after six hours of debate the Senate voted 63–16 to confirm; ten Republicans and six Democrats voted against.[4]: 95  Shortly after, Black's KKK membership became known and there was widespread outrage; nonetheless Black went on to become a prominent champion of civil liberties and civil rights.[25] Alabama Governor Bibb Graves appointed his own wife, Dixie B. Graves, to fill Black's vacated senate seat. On Black's first day on the bench, three lawyers contested Black's appointment on the basis of the Ineligibility Clause. The Court dismissed this concern in the same year in Ex parte Levitt.[26] Supreme Court career As soon as Black started on the Court, he advocated judicial restraint and worked to move the Court away from interposing itself in social and economic matters. Black vigorously defended the "plain meaning" of the Constitution, rooted in the ideas of its era, and emphasized the supremacy of the legislature; for Black, the role of the Supreme Court was limited and constitutionally prescribed.[4]: 16, 50  During his early years on the Supreme Court, Black helped reverse several earlier court decisions that were based on a narrow interpretation of federal power. Many New Deal laws that would have been struck down under earlier precedents were thus upheld. In 1939 Black was joined on the Supreme Court by Felix Frankfurter and William O. Douglas. Douglas voted alongside Black in several cases, especially those involving the First Amendment, while Frankfurter soon became one of Black's ideological foes.[27] From 1946 until 1971, Black was the Senior Associate Justice of the Supreme Court.[citation needed] Relationship with other justices Black was involved in a bitter controversy with Justice Robert H. Jackson (shown above). In the mid-1940s, Justice Black became involved in a bitter dispute with Justice Robert H. Jackson as a result of Jewell Ridge Coal Corp. v. Local 6167, United Mine Workers (1945). In this case the Court ruled 5–4 in favor of the UMW; Black voted with the majority, while Jackson dissented. However, the coal company requested the Court rehear the case on the grounds that Justice Black should have recused himself, as the mine workers were represented by Black's law partner of 20 years earlier. Under the Supreme Court's rules, each Justice was entitled to determine the propriety of disqualifying himself. Jackson agreed that the petition for rehearing should be denied, but refused to give approval to Black's participation in the case. Ultimately, when the Court unanimously denied the petition for rehearing, Justice Jackson released a short statement, in which Justice Frankfurter joined. The concurrence indicated that Jackson voted to deny the petition not because he approved of Black's participation in the case, but on the "limited grounds" that each Justice was entitled to determine for himself the propriety of recusal.[28][29] At first the case attracted little public comment. However, after Chief Justice Harlan Stone died in 1946, rumors that President Harry S. Truman would appoint Jackson as Stone's successor led several newspapers to investigate and report the Jewell Ridge controversy.[30] Black and Douglas allegedly leaked to newspapers that they would resign if Jackson were appointed Chief.[30] Truman ultimately chose Fred M. Vinson for the position. In 1948, Justice Black approved an order solicited by Abe Fortas that barred a federal district court in Texas from further investigation of significant voter fraud and irregularities in the 1948 Democratic primary election runoff for United States Senator from Texas. The order effectively confirmed future President Lyndon Johnson's apparent victory over former Texas Governor Coke Stevenson.[31][32] In the 1960s, Black clashed with Fortas, who by that time had been appointed as an Associate Justice. In 1968, a Warren clerk called their feud "one of the most basic animosities of the Court."[33] 1950s and beyond Vinson's tenure as Chief Justice coincided with the Second Red Scare, a period of intense anti-communism in the United States. In several cases the Supreme Court considered, and upheld, the validity of anticommunist laws passed during this era. For example, in American Communications Association v. Douds (1950), the Court upheld a law that required labor union officials to forswear membership in the Communist Party. Black dissented, claiming that the law violated the First Amendment's free speech clause. Similarly, in Dennis v. United States, 341 U.S. 494 (1951), the Court upheld the Smith Act, which made it a crime to "advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing the Government of the United States." The law was often used to prosecute individuals for joining the Communist Party. Black again dissented, writing: Public opinion being what it now is, few will protest the conviction of these Communist petitioners. There is hope, however, that, in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong in a free society.[34] Beginning in the late 1940s, Black wrote decisions relating to the establishment clause, where he insisted on the strict separation of church and state. The most notable of these was Engel v. Vitale (1962), which declared state-sanctioned prayer in public schools unconstitutional. This provoked considerable opposition, especially in conservative circles.[35] Efforts to restore school prayer by constitutional amendment failed.[citation needed] In 1953 Vinson died and was replaced by Earl Warren. While all members of the Court were New Deal liberals, Black was part of the most liberal wing of the Court, together with Warren, Douglas, William Brennan, and Arthur Goldberg. They said the Court had a role beyond that of Congress.[36] Yet while he often voted with them on the Warren Court, he occasionally took his own line on some key cases, most notably Griswold v. Connecticut (1965), which established that the Constitution protected a right to privacy. In not finding such a right implicit in the Constitution, Black wrote in his dissent that "Many good and able men have eloquently spoken and written ... about the duty of this Court to keep the Constitution in tune with the times. ... For myself, I must with all deference reject that philosophy."[4]: 120  Black's most prominent ideological opponent on the Warren Court was John Marshall Harlan II, who replaced Justice Jackson in 1955. They disagreed on several issues, including the applicability of the Bill of Rights to the states, the scope of the due process clause, and the one man, one vote principle.[citation needed] Black had a number of law clerks who became notable in their own right, including Judges Louis F. Oberdorfer, Truman McGill Hobbs, Guido Calabresi, and Drayton Nabers Jr., Professors John K. McNulty, Stephen Schulhofer, and Walter E. Dellinger III, Mayor David Vann, FCC Commissioner Nicholas Johnson, US Solicitor General Lawrence G. Wallace, and trial lawyer Stephen Susman.[37][38] Jurisprudence Hugo Black is often described as a "textualist" or "strict constructionist." Black's jurisprudence is among the most distinctive of any members of the Supreme Court in history and has been influential on justices as diverse as Earl Warren,[39][40][41] William Rehnquist,[42] and Antonin Scalia.[43] Black's jurisprudence had three essential components: history, literalism, and absolutism.[4]: 109 [44] Black's love of history was rooted in a lifelong love of books,[4]: 110  which led him to the belief that historical study was necessary for one to prevent repeating society's past mistakes.[4][page needed] Black wrote in 1968 that "power corrupts, and unrestricted power will tempt Supreme Court justices just as history tells us it has tempted other judges."[4]: 119  Second, Black's commitment to literalism involved using the words of the Constitution to restrict the roles of the judiciary—Black would have justices validate the supremacy of the country's legislature, unless the legislature itself was denying people their freedoms.[4]: 109  Black wrote: "The Constitution is not deathless; it provides for changing or repealing by the amending process, not by judges but by the people and their chosen representatives."[4]: 123  Black would often lecture his colleagues, liberal or conservative, on the Supreme Court about the importance of acting within the limits of the Constitution.[4][page needed] Third, Black's absolutism led him to enforce the rights of the Constitution, rather than attempting to define a meaning, scope, or extent to each right.[4][page needed] Black expressed his view on the Bill of Rights in his opinion in the 1947 case, Adamson v. California, which he saw as his "most significant opinion written:" I cannot consider the Bill of Rights to be an outworn 18th century 'strait jacket'  ... Its provisions may be thought outdated abstractions by some. And it is true that they were designed to meet ancient evils. But they are the same kind of human evils that have emerged from century to century wherever excessive power is sought by the few at the expense of the many. In my judgment the people of no nation can lose their liberty so long as a Bill of Rights like ours survives and its basic purposes are conscientiously interpreted, enforced, and respected ... I would follow what I believe was the original intention of the Fourteenth Amendment—to extend to all the people the complete protection of the Bill of Rights. To hold that this Court can determine what, if any, provisions of the Bill of Rights will be enforced, and if so to what degree, is to frustrate the great design of a written Constitution.[4]: 120–121  Judicial restraint Black intensely believed in judicial restraint and reserved the power of making laws to the legislatures, often scolding his more liberal colleagues for what he saw as judicially created legislation. Conservative justice John M. Harlan II would say of Black: "No Justice has worn his judicial robes with a keener sense of the limitations that go with them."[4]: 119  Conservative Judge Robert Bork wrote, "Justice Black came to have significantly more respect for the limits of the Constitution than Justice Douglas and the other leading members of the Warren majorities ever showed."[45] One scholar wrote, "No Justice of the Court conscientiously and persistently endeavored, as much as Justice Black did, to establish consistent standards of objectivity for adjudicating constitutional questions."[46] Black advocated a narrow role of interpretation for justices, opposing a view of justices as social engineers or rewriters of the Constitution. Black opposed enlarging constitutional liberties beyond their literal or historic "plain" meaning, as he saw his more liberal colleagues do.[4]: 119–120  However, he also condemned the actions of those to his right, such as the conservative Four Horsemen of the 1920s and 1930s, who struck down much of the New Deal's legislation.[citation needed] Black forged the 5–4 majority in the 1967 decision Fortson v. Morris, which cleared the path for the Georgia State Legislature to choose the governor in the deadlocked 1966 race between Democrat Lester Maddox and Republican Howard Callaway. Whereas Black voted with the majority under strict construction to uphold the state constitutional provision, his colleagues Douglas (joined by Warren, Brennan, and Fortas) and Fortas (joined by Warren and Douglas) dissented. According to Douglas, Georgia tradition would guarantee a Maddox victory though he had trailed Callaway by some three thousand votes in the general election returns. Douglas also saw the issue as a continuation of the earlier decision Gray v. Sanders, which had struck down Georgia's County Unit System, a kind of electoral college formerly used to choose the governor. Black argued that the U.S. Constitution does not dictate how a state must choose its governor. "Our business is not to write laws to fit the day. Our task is to interpret the Constitution," Black explained.[47] Textualism and originalism Black was noted for his advocacy of a textualist approach to constitutional interpretation. He took a "literal" or absolutist reading of the provisions of the Bill of Rights[4]: 115–118  and believed that the text of the Constitution is absolutely determinative on any question calling for judicial interpretation, leading to his reputation as a "textualist" and as a "strict constructionist". While the text of the constitution was an absolute limitation on the authority of judges in constitutional matters, within the confines of the text judges had a broad and unqualified mandate to enforce constitutional provisions, regardless of current public sentiment, or the feelings of the justices themselves.[4][page needed] Thus, Black refused to join in the efforts of the justices on the Court who sought to abolish capital punishment in the United States, whose efforts succeeded (temporarily) in the term immediately following Black's death. He claimed that the Fifth and Fourteenth Amendment's reference to takings of "life", and to "capital" crimes, meant approval of the death penalty was implicit in the Bill of Rights. He also was not persuaded that a right of privacy was implicit in the Ninth or Fourteenth amendments, and dissented from the Court's 1965 Griswold decision which invalidated a conviction for the use of contraceptives. Black said "It belittles that [Fourth] Amendment to talk about it as though it protects nothing but 'privacy' ... 'privacy' is a broad, abstract, and ambiguous concept ... The constitutional right of privacy is not found in the Constitution."[4]: 241  Justice Black rejected reliance on what he called the "mysterious and uncertain" concept of natural law. According to Black that theory was vague and arbitrary, and merely allowed judges to impose their personal views on the nation. Instead, he argued that courts should limit themselves to a strict analysis of the actual text of the Constitution. Black was, in addition, an opponent of the "living constitution" theory. In his dissent to Griswold (1965), he wrote: I realize that many good and able men have eloquently spoken and written, sometimes in rhapsodical strains, about the duty of this Court to keep the Constitution in tune with the times. The idea is that the Constitution must be changed from time to time, and that this Court is charged with a duty to make those changes. For myself, I must, with all deference, reject that philosophy. The Constitution makers knew the need for change, and provided for it. Amendments suggested by the people's elected representatives can be submitted to the people or their selected agents for ratification. That method of change was good for our Fathers, and, being somewhat old-fashioned, I must add it is good enough for me.[48] Thus, some have seen Black as an originalist. David Strauss, for example, hails him as "[t]he most influential originalist judge of the last hundred years."[49] Black insisted that judges rely on the intent of the Framers as well as the "plain meaning" of the Constitution's words and phrases (drawing on the history of the period) when deciding a case.[citation needed] Black additionally called for judicial restraint not usually seen in Court decision-making. The justices of the Court would validate the supremacy of the legislature in public policy-making, unless the legislature was denying people constitutional freedoms. Black stated that the legislature "was fully clothed with the power to govern and to maintain order."[4]: 112  Federalism Black held an expansive view of legislative power, whether that be state or federal, and would often vote against judicial review of state laws that could be struck down under the Commerce Clause.[50] Previously, during the 1920s and 1930s, the Court had interpreted the commerce clause narrowly, often striking down laws on the grounds that Congress had overstepped its authority.[4]: 88–90  After 1937, however, the Supreme Court overturned several precedents and affirmed a broader interpretation of the commerce clause. Black consistently voted with the majority in these decisions; for example, he joined Mulford v. Smith, 307 U.S. 38 (1939), United States v. Darby Lumber Co., 312 U.S. 100 (1941), Wickard v. Filburn, 317 U.S. 111 (1942), Heart of Atlanta Motel v. United States, 379 U.S. 241 (1964), and Katzenbach v. McClung, 379 U.S. 294 (1964).[citation needed] In several other federalism cases, however, Black ruled against the federal government. For instance, he partially dissented from South Carolina v. Katzenbach, 383 U.S. 301 (1966), in which the Court upheld the validity of the Voting Rights Act of 1965. In an attempt to protect the voting rights of African Americans, the act required any state whose population was at least 5% African American to obtain federal approval before changing its voting laws. Black wrote that the law, ... by providing that some of the States cannot pass state laws or adopt state constitutional amendments without first being compelled to beg federal authorities to approve their policies, so distorts our constitutional structure of government as to render any distinction drawn in the Constitution between state and federal power almost meaningless.[51] Similarly, in Oregon v. Mitchell (1970), he delivered the opinion of the court holding that the federal government was not entitled to set the voting age for state elections.[citation needed] In the law of federal jurisdiction, Black made a large contribution by authoring the majority opinion in Younger v. Harris. This case, decided during Black's last year on the Court, has given rise to what is now known as Younger abstention. According to this doctrine, an important principle of federalism called "comity"—that is, respect by federal courts for state courts—dictates that federal courts abstain from intervening in ongoing state proceedings, absent the most compelling circumstances. The case is also famous for its discussion of what Black calls "Our Federalism," a discussion in which Black expatiates on proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.[52] Black was an early supporter of the "one man, one vote" standard for apportionment set by Baker v. Carr. He had previously dissented in support of this view in Baker's predecessor case, Colegrove v. Green.[citation needed] Civil rights As a senator, Black filibustered an anti-lynching bill.[53] However, during his tenure on the bench, Black established a record more sympathetic to the civil rights movement. He joined the majority in Shelley v. Kraemer (1948), which invalidated the judicial enforcement of racially restrictive covenants. Similarly, he was part of the unanimous Brown v. Board of Education (1954) Court that struck down racial segregation in public schools. Black remained determined to desegregate the South and would call for the Supreme Court to adopt a position of "immediate desegregation" in 1969's Alexander v. Holmes County Board of Education.[citation needed] Black authored the court's majority opinion in Korematsu v. United States, which validated Roosevelt's decision to intern Japanese Americans on the West Coast during World War II. The decision is an example of Black's belief in the limited role of the judiciary; he validated the legislative and executive actions that led to internment, saying "it is unnecessary for us to appraise the possible reasons which might have prompted the order to be used in the form it was."[4]: 113  Black also tended to favor law and order over civil rights activism.[54][4]: 115  This led him to read the Civil Rights Act narrowly. For example, he dissented in multiple cases reversing convictions of sit-in protesters, arguing to limit the scope of the Civil Rights Act.[55] In 1968 he said, "Unfortunately there are some who think that Negroes should have special privileges under the law."[56] Black felt that actions like protesting, singing, or marching for "good causes" one day could lead to supporting evil causes later on; his sister-in-law explained that Black was "mortally afraid" of protesters. Black opposed the actions of some civil rights and Vietnam War protesters and believed that legislatures first, and courts second, should be responsible for alleviating social wrongs. Black once said he was "vigorously opposed to efforts to extend the First Amendment's freedom of speech beyond speech," to conduct.[4][page needed] First Amendment Black took an absolutist approach to First Amendment jurisprudence, believing the first words of the Amendment that said "Congress shall make no law ..." Black rejected the creation of judicial tests for free speech standards, such as the tests for "clear and present danger", "bad tendency", "gravity of the evil," "reasonableness," or "balancing." Black would write that the First Amendment is "wholly 'beyond the reach' of federal power to abridge ... I do not believe that any federal agencies, including Congress and the Court, have power or authority to subordinate speech and press to what they think are 'more important interests.'"[4][page needed] He believed that the First Amendment erected a metaphorical wall of separation between church and state. During his career Black wrote several important opinions relating to church-state separation. He delivered the opinion of the court in Everson v. Board of Education (1947), which held that the establishment clause was applicable not only to the federal government, but also to the states.[citation needed] In four bar applicant appeals to the Supreme Court, Black advanced the argument that a person's political affiliation or beliefs, without action, was not enough to establish evidence of bad moral character. Black argued in 1957, in Schware v. Board of Bar Examiners (1957), that New Mexico could not exclude a law graduate from becoming a lawyer because Schware might have, at one time, consorted with communist causes. Schware was, in fact, a decorated veteran who fought in World War II. Black reaffirmed this position in Konigsberg v. State Bar of California (1957) decided in the same year. A majority of the Court sided with Black. However, in 1961, in both Konigsberg v. State Bar of California II (1961), and In re Anastaplo (1961), the majority of justices, over Black's vigorous dissent, determined that a person who refused to answer whether they had been a member of an organization on the Attorney General's Subversive Organizations List, could be excluded on the basis of bad character.[57] Black's majority opinion in McCollum v. Board of Education (1948) held that the government could not provide religious instruction in public schools. In Torcaso v. Watkins (1961), he delivered an opinion which affirmed that the states could not use religious tests as qualifications for public office. Similarly, he authored the majority opinion in Engel v. Vitale (1962), which declared it unconstitutional for states to require the recitation of official prayers in public schools.[citation needed] Justice Black is often regarded as a leading defender of First Amendment rights such as the freedom of speech and of the press.[58] He refused to accept the doctrine that the freedom of speech could be curtailed on national security grounds. Thus, in New York Times Co. v. United States (1971), he voted to allow newspapers to publish the Pentagon Papers despite the Nixon Administration's contention that publication would have security implications. In his concurring opinion, Black stated, In the First Amendment the Founding Fathers gave the free press the protection it must have to fulfill its essential role in our democracy. The press was to serve the governed, not the governors. The Government's power to censor the press was abolished so that the press would remain forever free to censure the Government. The press was protected so that it could bare the secrets of government and inform the people. Only a free and unrestrained press can effectively expose deception in government. ... The word 'security' is a broad, vague generality whose contours should not be invoked to abrogate the fundamental law embodied in the First Amendment. — New York Times Co. v. United States, 403 U.S. 713, 717 (1971).[59] He rejected the idea that the government was entitled to punish "obscene" speech. Likewise, he argued that defamation laws abridged the freedom of speech and were therefore unconstitutional. Most members of the Supreme Court rejected both of these views; Black's interpretation did attract the support of Justice Douglas.[4][page needed] However, he did not believe that individuals had the right to speak wherever they pleased. He delivered the majority opinion in Adderley v. Florida (1966), controversially upholding a trespassing conviction for protesters who demonstrated on government property. He also dissented from Tinker v. Des Moines (1969), in which the Supreme Court ruled that students had the right to wear armbands (as a form of protest) in schools, writing, While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.[60] Moreover, Black took a narrow view of what constituted "speech" under the First Amendment; for him, "conduct" did not deserve the same protections that "speech" did.[4]: 114–115  For example, he did not believe that flag burning was speech; in Street v. New York (1969), he wrote: "It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense."[61] Similarly, he dissented from Cohen v. California (1971), in which the Court held that wearing a jacket emblazoned with the words "the Draft" was speech protected by the First Amendment. He asserted that this activity "was mainly conduct, and little speech."[citation needed] As a Justice, Black held the view that the Court should literally enforce constitutional guarantees, especially the First Amendment free speech clause. He was often labeled an 'activist' because of his willingness to review legislation that arguably violated constitutional provisions. Black maintained that literalism was necessary to cabin judicial power.[62] For these reasons, he was one of the dissenting votes in the case of George Anastaplo who was prohibited from the Illinois Bar because he refused to denounce communists and refused to give a testimony of his political ideology. Black is quoted as stating: Anastaplo has not indicated, even remotely, a belief that this country is an oppressive one in which the 'right of revolution' should be exercised. Quite the contrary, the entire course of his life, as disclosed by the record, has been one of devotion and service to his country—first, in his willingness to defend its security at the risk of his own life in time of war and, later, in his willingness to defend its freedoms at the risk of his professional career in time of peace.[63] In a 1968 public interview, reflecting on his most important contributions, Black put his dissent from Adamson v. California "at the top of the list, but then spoke with great eloquence from one of his earliest opinions in Chambers v. Florida (1940)."[62] Criminal procedure Black adopted a narrower interpretation of the Fourth Amendment than many of his colleagues on the Warren Court. He dissented from Katz v. United States (1967), in which the Court held that warrantless wiretapping violated the Fourth Amendment's guarantee against unreasonable search and seizure. He argued that the Fourth Amendment only protected tangible items from physical searches or seizures. Thus, he concluded that telephone conversations were not within the scope of the amendment, and that warrantless wiretapping was consequently permissible.[citation needed] Justice Black originally believed that the Constitution did not require the exclusion of illegally seized evidence at trials. In his concurrence to Wolf v. Colorado (1949), he claimed that the exclusionary rule was "not a command of the Fourth Amendment but ... a judicially created rule of evidence."[64] But he later changed his mind and joined the majority in Mapp v. Ohio (1961), which applied it to state as well as federal criminal investigations. In his concurrence, he indicated that his support was based on the Fifth Amendment's guarantee of the right against self-incrimination, not on the Fourth Amendment's guarantee against unreasonable searches and seizures. He wrote, "I am still not persuaded that the Fourth Amendment, standing alone, would be enough to bar the introduction into evidence ... seized ... in violation of its commands."[65] In other instances Black took a fairly broad view of the rights of criminal defendants. He joined the Supreme Court's landmark decision in Miranda v. Arizona (1966), which required law enforcement officers to warn suspects of their rights prior to interrogations, and consistently voted to apply the guarantees of the Fourth, Fifth, Sixth, and Eighth Amendments at the state level.[citation needed] Black was the author of the landmark decision in Gideon v. Wainwright (1963), which ruled that the states must provide an attorney to an indigent criminal defendant who cannot afford one. Before Gideon, the Court had held that such a requirement applied only to the federal government.[citation needed] Bill of Rights applicable to states, or "incorporation" question One of the most notable aspects of Justice Black's jurisprudence was the view that the entirety of the federal Bill of Rights was applicable to the states. Originally, the Bill of Rights was binding only upon the federal government, as the Supreme Court ruled in Barron v. Baltimore (1833). According to Black, the Fourteenth Amendment, ratified in 1868, "incorporated" the Bill of Rights, or made it binding upon the states as well. In particular, he pointed to the Privileges or Immunities Clause, "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." He proposed that the term "privileges or immunities" encompassed the rights mentioned in the first eight amendments to the Constitution.[4]: 212–213  Black first expounded this theory of incorporation when the Supreme Court ruled in Adamson v. California (1947) that the Fifth Amendment's guarantee against self-incrimination did not apply to the states. It was during this period of time that Hugo Black became a disciple of John Lilburne and his claim of 'freeborn rights'.[66] In an appendix to his dissenting opinion, Justice Black analyzed statements made by those who framed the Fourteenth Amendment, reaching the conclusion that "the Fourteenth Amendment, and particularly its privileges and immunities clause, was a plain application of the Bill of Rights to the states."[67] Black's theory attracted the support of Justices such as Frank Murphy and William O. Douglas. However, it never achieved the support of a majority of the Court.[4][page needed] The most prominent opponents of Black's theory were Justices Felix Frankfurter and John Marshall Harlan II.[4][page needed] Frankfurter and Harlan argued that the Fourteenth Amendment did not incorporate the Bill of Rights per se, but merely protected rights that are "implicit in the concept of ordered liberty," which was the standard Justice Cardozo had established earlier in Palko v. Connecticut.[citation needed] The Supreme Court never accepted the argument that the Fourteenth Amendment incorporated the entirety of the Bill of Rights.[68] However, it did agree that some "fundamental" guarantees were made applicable to the states. For the most part, during the 1930s, 1940s, and 1950s, only First Amendment rights (such as free exercise of religion and freedom of speech) were deemed sufficiently fundamental by the Supreme Court to be incorporated.[citation needed] However, during the 1960s, the Court under Chief Justice Warren took the process much further, making almost all guarantees of the Bill of Rights binding upon the states.[69] Thus, although the Court failed to accept Black's theory of total incorporation, the end result of its jurisprudence is very close to what Black advocated. Today, the only parts of the first eight amendments that have not been extended to the states are the Third and Seventh Amendments, the grand jury clause of the Fifth Amendment, the Eighth Amendment's protection against excessive bail, and the guarantee of the Sixth Amendment, as interpreted, that criminal juries be composed of 12 members.[70] Due process clause Justice Black was well known for his rejection of the doctrine of substantive due process. Most Supreme Court Justices accepted the view that the due process clause encompassed not only procedural guarantees, but also "fundamental fairness" and fundamental rights. Thus, it was argued that due process included a "substantive" component in addition to its "procedural" component.[71] Black, however, believed that this interpretation of the due process clause was unjustifiably broad. In his dissent to Griswold, he charged that the doctrine of substantive due process "takes away from Congress and States the power to make laws based on their own judgment of fairness and wisdom, and transfers that power to this Court for ultimate determination."[48] Instead, Black advocated a much narrower interpretation of the clause. In his dissent to In re Winship, he analyzed the history of the term "due process of law", and concluded: "For me, the only correct meaning of that phrase is that our Government must proceed according to the 'law of the land'—that is, according to written constitutional and statutory provisions as interpreted by court decisions."[72] Black's view on due process drew from his reading of British history; to him, due process meant all persons were to be tried in accordance with the Bill of Rights' procedural guarantees and in accordance with constitutionally pursuant laws. Black advocated equal treatment by the government for all persons, regardless of wealth, age, or race. Black's view of due process was restrictive in the sense that it was premised on equal procedures; it did not extend to substantive due process. This was in accordance with Black's literalist views.[4]: 116–117  Black did not tie procedural due process exclusively to the Bill of Rights, but he did tie it exclusively to the Bill of Rights combined with other explicit provisions of the Constitution.[73] None of Black's colleagues shared his interpretation of the due process clause. His chief rival on the issue (and on many other issues) was Felix Frankfurter, who advocated a substantive view of due process based on "natural law"—if a challenged action did not "shock the conscience" of the jurist, or violate British concepts of fairness, Frankfurter would find no violation of due process of law. John M. Harlan II largely agreed with Frankfurter, and was highly critical of Black's view, indicating his "continued bafflement at ... Black's insistence that due process ... does not embody a concept of fundamental fairness" in his Winship concurrence.[72] Voting rights No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. --Justice Black - on the right to vote as the foundation of democracy in Wesberry v. Sanders (1964).[74] Black was one of the Supreme Court's foremost defenders of the "one man, one vote" principle.[75] He delivered the opinion of the court in Wesberry v. Sanders (1964), holding that the Constitution required congressional districts in any state to be approximately equal in population. He concluded that the Constitution's command "that Representatives be chosen 'by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."[76] Likewise, he voted in favor of Reynolds v. Sims (1964), which extended the same requirement to state legislative districts on the basis of the equal protection clause.[citation needed] At the same time, Black did not believe that the equal protection clause made poll taxes unconstitutional. During his first term on the Court, he participated in a unanimous decision to uphold Georgia's poll tax in the case of Breedlove v. Suttles.[77] Then, twenty-nine years later, he dissented from the Court's ruling in Harper v. Virginia Board of Elections (1966), invalidating the use of the poll tax as a qualification to vote, in which Breedlove was overturned. He criticized the Court for exceeding its "limited power to interpret the original meaning of the Equal Protection Clause" and for "giving that clause a new meaning which it believes represents a better governmental policy."[78] He also dissented from Kramer v. Union Free School District No. 15 (1969), in which a majority struck down a statute that prohibited registered voters from participating in certain school district elections unless they owned or rented real property in their local school district, or were parents or guardians of children attending the public schools in the district.[79] On August 12, 1937, President Franklin D. Roosevelt nominated then-Senator Hugo Black of Alabama to the Supreme Court. Despite controversies about his past membership in the KKK, the Justice would go on to serve for more than three decades, establishing an impressive legacy of support for civil liberties and strict adherence to the text of the Constitution. Hugo Lafayette Black was born in small-town Harlan, Alabama, on February 27, 1886. He was the youngest of eight children born to William Lafayette Black, a one-time Confederate soldier, and Martha Ardellah Toland, who named him after Victor Hugo, the famous author of Les Misérables. Black graduated from Ashland College (a combination high school and junior college). He then briefly attended medical school before switching to the University of Alabama Law School, where he graduated Phi Beta Kappa in 1906. Yet his relative lack of formal education stuck with him through adulthood, when he maintained a book-a-day diet that included classical and European history, philosophy and American fiction. In 1911, Black left private practice to serve for 18 months as a local police court judge, where he observed firsthand the practices of Birmingham law enforcement. It is suggested that this experience gave him both an inclination to support police and an awareness of brutality toward African-Americans and other minority groups. His career as a district attorney and trial lawyer further suggests consciousness of and sympathy for the downtrodden. One of his first acts as the Jefferson County DA, for example, was to release several hundred prisoners held under a fee system by which officials received a per-diem stipend for each person in their custody. Black also investigated and ended a system of forced confessions that included buckle-strap beatings. He later resigned from his post to enlist for one year in the U.S. Army during World War I. His decision in 1923 to join the Ku Klux Klan for two years would dog him for the rest of his career, casting a shadow over the rest of his accomplishments. In an interview with the New York Times, held confidential until his death, Black said the “main reason” he joined the Klan was to earn “an even chance” with juries in his private career: “I was trying a lot of cases against corporations, jury cases, and I found out that all the corporation lawyers were in the Klan. A lot of the jurors were too, so I figured I’d better be even-up.” Still, Black marched in parades and spoke at nearly 150 meetings, dressed in the white Klan uniform. After winning the Democratic Senate primary in 1926, he accepted a Klan “grand passport,” saying, “I know that without the support of the members of this organization, I would not have been called, even by my enemies, ‘the junior Senator from Alabama.’” That gift came back to haunt him after his Supreme Court confirmation when the press accused him of maintaining a Klan membership—an assertion he later dismissed forcefully in public remarks one month later. As a U.S. Senator for two terms, elected in 1926 and 1932, Black was a fervent supporter of FDR’s New Deal programs, going so far as to propose a 30-hour national work week, which passed the Senate but died in the House. He also investigated the fraudulent lobbying activities of public utilities, leading to new regulation. (“You, the people of the United States, will not permit it to destroy you,” he said of the utility lobby in a public address. “You will destroy it.”) However, Black also tried to reduce immigration and led a battle against anti-lynching legislation, complicating his liberal record. He even supported FDR’s “court-packing” plan, believing as the President did that the Supreme Court was misinterpreting the Constitution by striking down economic regulation in the midst of a Great Depression. So it was with more than a little irony that Black was FDR’s first nominee to the high court, filling the seat of Justice Willis Van Devanter, one of the “Four Horsemen of Reaction.” Black’s firm opposition to the use of “substantive due process”—a controversial doctrine by which “unnamed” or “unenumerated” rights, such as the right of contract or the right to marital privacy, are protected by the Due Process Clauses of the Fifth Amendment and 14th Amendment—made him an ideal candidate. “That’s why I came on the Court,” he later told the Times. “I was against using due process to force the views of judges on the country. I still am. I wouldn’t trust judges with that kind of power and the Founders did not trust them either.” Black’s influence may be most visible—and consequential—in the incorporation, or application, of the Bill of Rights against the states. His dissent in Adamson v. California (1947) laid out a theory of “total incorporation,” by which the 14th Amendment made all the rights and freedoms of the first 10 amendments apply as much to state governments as to the federal government. He was aggressively opposed by Justice Felix Frankfurter, who argued in a concurring opinion that the 14th Amendment merely required states to follow principles of “fundamental fairness” and “ordered liberty.” He didn’t win the Adamson fight, but Black was later vindicated by Justice William Brennan’s theory of “selective incorporation,” by which many provisions of the Bill of Rights were applied to the states on a case-by-case basis through the 14th Amendment’s Due Process Clause. Though incorporation began more than half a century earlier in Chicago Burlington (1897), it found new success after Frankfurter’s retirement in 1962, eventually applying most provisions to the states with only a few exceptions. Black also played an important role in a swath of landmark cases, many of which are household names or nearly so. In some cases, Black spoke for the Court, while in others, he simply joined the majority. These include Mapp v. Ohio (1961), applying the exclusionary rule to the states; Gideon v. Wainwright (1964), applying the right to counsel to the states; Brown v. Board of Education (1954), ending racial segregation in schools; Baker v. Carr (1962), recognizing judicial review of legislative apportionment; Engel v. Vitale (1962), ending prayer in schools; and New York Times v. Sullivan (1964), expanding the right of free speech. Yet Black’s record includes writing the majority opinion in Korematsu v. United States (1944), the infamous case in which the Court upheld the federal government’s detention of Japanese-Americans during World War II. Even toward the end of his career, Black stood by the ruling: “I would do precisely the same thing today, in any part of the country. I would probably issue the same order were I President.” His dissenting votes in Griswold v. Connecticut (1965) and Tinker v. Des Moines (1969) further complicate his reputation among civil libertarians. On August 28, 1971, the now-elderly Justice fell ill and was hospitalized. On September 17, he officially retired from the Supreme Court. On September 25, he passed away after suffering a stroke. After 34 years, the legal legend was finally done. 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, as well as over state court cases that involve a point of 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] However, it may act only within the context of a case in an area of law over which it has jurisdiction. The court may decide cases having political overtones but has ruled that it does not have power to decide non-justiciable political questions. Established by Article Three of the United States Constitution, the composition and procedures of the Supreme Court were initially established by the 1st Congress through the Judiciary Act of 1789. As later set by the Judiciary Act of 1869, the court consists of the chief justice of the United States and eight associate justices. Each justice has lifetime tenure, meaning they remain on the court until they die, retire, resign, or are removed from office.[4] 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 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 court meets in the Supreme Court Building in Washington, D.C. Its law enforcement arm is the Supreme Court Police. Contents 1 History 1.1 Earliest beginnings through Marshall 1.2 From Taney to Taft 1.3 New Deal era 1.4 Burger, Rehnquist, and Roberts 2 Composition 2.1 Nomination, confirmation, and appointment 2.1.1 Recess appointments 2.2 Tenure 2.3 Size of the court 3 Membership 3.1 Current justices 3.1.1 Length of tenure 3.2 Court demographics 3.3 Retired justices 3.4 Seniority and seating 3.5 Salary 3.6 Judicial leanings 4 Facilities 5 Jurisdiction 5.1 Justices as circuit justices 6 Process 6.1 Term 6.2 Case selection 6.3 Oral argument 6.4 Supreme Court bar 6.5 Decision 6.6 Published opinions 6.6.1 Citations to published opinions 7 Institutional powers 7.1 Constraints 8 Law clerks 8.1 Politicization of the Court 9 Criticism and controversies 9.1 Judicial activism 9.2 Individual rights 9.3 Power excess 9.4 Courts are a poor check on executive power 9.5 Federal versus state power 9.6 Secretive proceedings 9.7 Judicial interference in political disputes 9.8 Not choosing enough cases to review 9.9 Lifetime tenure 9.10 Accepting gifts and outside income 10 See also 10.1 Selected landmark Supreme Court decisions 11 References 11.1 Bibliography 12 Further reading 13 External links History Main article: History of the Supreme Court of the United States Image of two-story brick building. The Court lacked its own building until 1935; from 1791 to 1801, it met in Philadelphia's City Hall. 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; 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. 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] They delineated neither the exact powers and prerogatives of the Supreme Court nor the organization of the judicial branch as a whole. The Royal Exchange, New York City, the first meeting place of the Supreme Court 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] 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] 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] Earliest beginnings through Marshall Main articles: Jay Court, Rutledge Court, Ellsworth Court, and Marshall Court Chief Justice Marshall (1801–1835) 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 Main articles: Taney Court, Chase Court, Waite Court, Fuller Court, White Court, and Taft Court 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] It was in 1869 that the size of the court last changed, being 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 Main articles: Hughes Court, Stone Court, Vinson Court, and Warren Court The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935 The Court seated 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 citizens (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 created 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 Main articles: Burger Court, Rehnquist Court, and Roberts Court 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, was especially controversial.[65][66] The Roberts Court (2005–present) is regarded as more conservative than the Rehnquist Court.[67][68][69][70] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Twombly–Iqbal), voting rights and federal preclearence (Shelby County–Brnovich), abortion (Gonzales v. Carhart and Dobbs v. Jackson Women's Health Organization),[71] 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),[72] Heller–McDonald–Bruen (Second Amendment),[73] and Baze v. Rees (Eighth Amendment).[74][75] Composition Nomination, confirmation, and appointment Main article: Nomination and confirmation to the Supreme Court of the United States 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, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.[76] 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.[77] 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.[78] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.[79] 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.[80] 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.[81] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[82] After receiving their commission, the appointee must then take the two prescribed oaths before assuming their official duties.[83] 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.[84][85] 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.[86] 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).[87][88] 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.[89] 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.[90] 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";[91] such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.[91][92] 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."[93] This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions.[94] Tenure The interior of the United States Supreme Court 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.[95][96][97] No constitutional mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.[98] 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.[99] 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.[100] 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.[101] On average a new justice joins the Court about every two years.[102] 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 Article III of the Constitution sets neither the size of the Supreme Court nor any specific positions on it (though the existence of the office of the chief justice is tacitly acknowledged in Article I, Section 3, Clause 6). Instead, these powers have typically been entrusted 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, 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: seven in 1807, nine in 1837, and ten in 1863.[103][104] 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,[105] a Republican, signed into law the Judiciary Act of 1869. This returned the number of justices to nine[106] (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.[107] 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 United States 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.”[108][109][110][111] The rise and solidification of a conservative majority on the Court during the presidency of Donald Trump sparked a liberal response in the form of calls for court-packing. Democrats in the House of Representatives introduced a bill in April 2021 to expand the Supreme Court from nine to 13 seats, but Speaker of the House Nancy Pelosi refused to bring it to the floor and relatively few Democrats backed it.[112][113] Shortly after taking office in January 2021, Joe Biden established a presidential Commission to study possible reforms to the Supreme Court, and among the topics studied was expanding the size of the Court. The committee's October 2021 final report did not offer a recommendation on expanding the size of the Court, but did note that there are "considerable" risks to doing so.[114][115][116] Whether it would be constitutional to expand the size of the Supreme Court in ways understood to be designed to "pack" it with justices that would rule more favorably on a president's agenda or to simply change the ideological composition of the court remains unclear.[117][118] Membership See also: List of justices of the Supreme Court of the United States 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 11,239 days (30 years, 281 days) as of July 31, 2022; the most recent justice to join the court is Ketanji Brown Jackson, whose tenure began on June 30, 2022.[119] Current justices of the Supreme Court[120] Justice / birthdate and place Appointed by SCV Age at Start date / length of service Succeeded Start Present File-Official roberts CJ cropped.jpg (Chief) John Roberts January 27, 1955 Buffalo, New York G. W. Bush 78–22 50 67 September 29, 2005 16 years, 305 days Rehnquist Clarence Thomas official SCOTUS portrait (cropped).jpg Clarence Thomas June 23, 1948 Pin Point, Georgia G. H. W. Bush 52–48 43 74 October 23, 1991 30 years, 281 days Marshall Samuel Alito official photo (cropped).jpg Samuel Alito April 1, 1950 Trenton, New Jersey G. W. Bush 58–42 55 72 January 31, 2006 16 years, 181 days O'Connor Sonia Sotomayor in SCOTUS robe crop.jpg Sonia Sotomayor June 25, 1954 New York City, New York Obama 68–31 55 68 August 8, 2009 12 years, 357 days Souter Elena Kagan-1-1.jpg Elena Kagan April 28, 1960 New York City, New York Obama 63–37 50 62 August 7, 2010 11 years, 358 days Stevens Associate Justice Neil Gorsuch Official Portrait (cropped 2).jpg Neil Gorsuch August 29, 1967 Denver, Colorado Trump 54–45 49 54 April 10, 2017 5 years, 112 days Scalia Associate Justice Brett Kavanaugh Official Portrait.jpg Brett Kavanaugh February 12, 1965 Washington, D.C. Trump 50–48 53 57 October 6, 2018 3 years, 298 days Kennedy Amy Coney Barrett official portrait.jpg Amy Coney Barrett January 28, 1972 New Orleans, Louisiana Trump 52–48 48 50 October 27, 2020 1 year, 277 days Ginsburg KBJackson.jpg Ketanji Brown Jackson September 14, 1970 Washington, D.C. Biden 53–47 51 51 June 30, 2022 31 days Breyer Length of tenure 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: Court demographics Further information: Demographics of the Supreme Court of the United States 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.[121][122] 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.[123] Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists.[124][125] The first Catholic justice was Roger Taney in 1836,[126] and 1916 saw the appointment of the first Jewish justice, Louis Brandeis.[127] 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.[128][129][130] Eight of the current justices received their law degree 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 law degree at Notre Dame. Previous positions or offices, judicial or federal government, held by the current justices prior to joining the Court include: Justice Position 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 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.[131] Racial, ethnic, and gender diversity in the court increased in the late 20th century. Thurgood Marshall became the first African-American justice in 1967.[127] Sandra Day O'Connor became the first female justice in 1981.[127] In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991.[132] O'Connor was joined by Ruth Bader Ginsburg, the first Jewish woman on the Court, in 1993.[133] After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice,[127] and in 2010 by Elena Kagan.[133] 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 Izmir, Turkey); George Sutherland (1922–1939), born in Buckinghamshire, England; and Felix Frankfurter (1939–1962), born in Vienna, Austria-Hungary (now in Austria).[127] Retired justices There are currently four living retired justices of the Supreme Court of the United States: Sandra Day O'Connor, 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; and Justice O'Connor often sat with several Courts of Appeal before withdrawing from public life in 2018.[134] 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 sometimes even political factors playing a role.[135][136] 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.[137][138] Retired justices of the Supreme Court[120] Justice Birthdate and place Appointed by Age at Tenure (active service) Retirement Present Start date End date Length Sandra Day O'Connor crop.jpg Sandra Day O'Connor March 26, 1930 El Paso, Texas Reagan 75 92 September 25, 1981 January 31, 2006 24 years, 128 days Anthony Kennedy official SCOTUS portrait crop.jpg Anthony Kennedy July 23, 1936 Sacramento, California Reagan 82 86 February 18, 1988 July 31, 2018 30 years, 163 days DavidSouter.jpg David Souter September 17, 1939 Melrose, Massachusetts G. H. W. Bush 69 82 October 9, 1990 June 29, 2009 18 years, 263 days Stephen Breyer official SCOTUS portrait crop.jpg Stephen Breyer August 15, 1938 San Francisco, California Clinton 83 83 August 3, 1994 June 30, 2022 27 years, 362 days Seniority and seating This section needs additional citations for verification. Please help improve this article by adding citations to reliable sources. Unsourced material may be challenged and removed. Find sources: "Supreme Court of the United States" – news · newspapers · books · scholar · JSTOR (January 2019) (Learn how and when to remove this template message) The Roberts Court justices (from October 2020 to June 2022): Front row (left to right): Samuel Alito, Clarence Thomas, Chief Justice John Roberts, Stephen Breyer, and Sonia Sotomayor. Back row (left to right): Brett Kavanaugh, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. 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, starting with the October 2022 term, the court will sit 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, and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions. 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.[139] Justice Joseph Story served the longest as junior justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows very closely behind serving from August 3, 1994, to January 31, 2006, for a total of 4,199 days.[140] Justice Elena Kagan comes in at a distant third serving from August 6, 2010, to April 10, 2017, for a total of 2,439 days. Salary Main article: Federal judge salaries in the United States As of 2021, associate justices receive a yearly salary of $268,300 and the chief justice is paid $280,500 per year.[141] Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement. Judicial leanings Further information: Ideological leanings of United States Supreme Court justices Although justices are nominated by the president in power, and receive confirmation by the U.S. Senate, justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches. Jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings generally refer to legal outlook rather than a political or legislative one. The nominations of justices are endorsed by individual politicians in the legislative branch who vote their approval[clarification needed] or disapproval of the nominated justice. The ideologies of jurists can be measured and compared with several metrics, including the Segal–Cover score, Martin-Quinn score, and Judicial Common Space score.[142][143] Following the confirmation of Ketanji Brown Jackson in 2022, the court consists 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 and Kagan, appointed by Democratic presidents, compose the court's liberal wing; Justice Jackson is expected to join them. Gorsuch had a track record as a reliably conservative judge in the 10th circuit.[144] Kavanaugh was considered one of the most conservative judges in the DC Circuit prior to his appointment to the Supreme Court.[145][146] Likewise, Barrett's brief track record on the Seventh Circuit is conservative.[147] Prior to Justice Ginsburg's death, Chief Justice Roberts was considered the court's median justice (in the middle of the ideological spectrum, with four justices more liberal and four more conservative than him), making him the ideological center of the court.[148][149] Since Ginsburg's death and Barrett's confirmation, Kavanaugh is the court's median justice, based on the criterion that he has been in the majority more than any other justice.[150] Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions."[151] He pointed out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defied the popular conception of the ideological lines of the court.[152] Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) were an illustration that the conservative justices had not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacked merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation. Percentage of cases decided unanimously and by a one-vote margin from 1971 to 2016 According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5–4 vote, with an average of 70% of those split opinions decided by a court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the court has divided along ideological lines, which represents about 44% of all the 5–4 decisions.[153] In the October 2010 term, the court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the court reverses a lower court without arguments and without issuing an opinion on the case).[154][155] Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9–0 or 8–0), and 16 decisions were made by a 5–4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term).[156] However, in fourteen of the sixteen 5–4 decisions, the court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5–4 decisions, the highest cohesion rate of that bloc in the Roberts Court.[154][157] The October 2017 term had a low rate of unanimous rulings, with only 39% of the cases decided by unanimous rulings, the lowest percentage since the October 2008 term when 30% of rulings were unanimous.[158] Chief Justice Roberts was in the majority most often (68 out of 73 cases, or 93.2%), with retiring Justice Anthony Kennedy in second (67 out of 73 cases, or 91.8%); this was typical of the Roberts Court, in which Roberts and Kennedy have been in the majority most frequently in all terms except for the 2013 and 2014 terms (though Kennedy was in the top on both those terms).[159] Justice Sotomayor was the justice least likely to be in the majority (in 50 out of 73 cases, or 68.5%). The highest agreement between justices was between Ginsburg and Sotomayor, who agreed on 95.8% of the cases, followed by Thomas and Alito agreeing on 93% of cases. There were 19 cases that were decided by a 5–4 vote (26% of the total cases); 74% of those cases (14 out of 19) broke along ideological lines, and for the first time in the Roberts Court, all of those resulted in a conservative majority, with Roberts, Kennedy, Thomas, Alito, and Gorsuch on the majority.[159] The October 2018 term, which saw the replacement of Anthony Kennedy by Brett Kavanaugh, once again saw a low rate of unanimity: only 28 of 71 decided cases were decided by a unanimous court, about 39% of the cases.[160][161] Of these, only 19 cases had the justices in total agreement. Chief Justice Roberts was once again the justice most often in the majority (61 out of 72 cases, or 85% of the time). Although Kavanaugh had a higher percentage of times in the majority, he did not participate in all cases, voting in the majority 58 out of 64 times, or 91% of the cases in which he participated. Of the justices who participated in all 72 cases, Kagan and Alito tied in second place, voting in the majority 59 out of 72 times (or 82% of the time). Looking only at cases that were not decided unanimously, Roberts and Kavanaugh were the most frequently in the majority (33 cases, with Roberts being in the majority in 75% of the divided cases, and Kavanaugh in 85% of the divided cases he participated in). Of 20 cases that were decided by a vote of 5–4, eight featured the conservative justices in the majority (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh), and eight had the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) joined by a conservative: Gorsuch was the most frequent, joining them four times, and the remaining conservative justices joining the liberals once each. The remaining four cases were decided by different coalitions.[161] The highest agreement between justices was between Roberts and Kavanaugh, who agreed at least in judgement 94% of the time; the second highest agreement was again between Ginsburg and Sotomayor, who agreed 93% of the time. The highest rate of full agreement was between Ginsburg and Kagan (82% of the time), closely followed by Roberts and Alito, Ginsburg and Sotomayor, and Breyer and Kagan (81% of the time). The largest rate of disagreement was between Thomas and both Ginsburg and Sotomayor; Thomas disagreed with each of them 50% of the time.[161] By the completion of the 2021 term, the percent of 6–3 decisions favoring the conservative majority had reached 30%, with the percent of unanimous cases having dropped to the same number.[162] Facilities Main article: United States Supreme Court Building 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. 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 police force separate from the Capitol Police.[163] Located across First Street from the United States Capitol at One First Street NE and Maryland Avenue,[164][165] the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays.[164] Visitors may not tour the actual courtroom unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film.[163] 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.[163] 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.[166] The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. From mid-May until the end of June, the court releases orders and opinions beginning at 10 am, and these 15 to 30-minute sessions are open to the public on a similar basis.[163] Supreme Court Police are available to answer questions.[164] Jurisdiction 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[167] but may decline to hear such cases.[168] 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."[169] In 1906, the court asserted its original jurisdiction to prosecute individuals for contempt of court in United States v. Shipp.[170] The resulting proceeding remains the only contempt proceeding and only criminal trial in the court's history.[171][172] 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."[171] 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.[171][172][173] 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.[174] The court's appellate jurisdiction consists of appeals from federal courts of appeal (through certiorari, certiorari before judgment, and certified questions),[175] the United States Court of Appeals for the Armed Forces (through certiorari),[176] the Supreme Court of Puerto Rico (through certiorari),[177] the Supreme Court of the Virgin Islands (through certiorari),[178] the District of Columbia Court of Appeals (through certiorari),[179] and "final judgments or decrees rendered by the highest court of a State in which a decision could be had" (through certiorari).[179] 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.[180] 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.[181] 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, 416 U.S. 312 (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, 410 U.S. 113 (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.[182] 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.[183] The circuit justice for each circuit is responsible for dealing with certain types of applications that, under the court's rules, may be addressed by a single justice. These include applications for emergency stays (including stays of execution in death-penalty cases) and injunctions pursuant to the All Writs Act arising from cases within that circuit, as well as routine requests such as requests for extensions of time. In the past,[when?] circuit justices also sometimes ruled on motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal. 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, in such matters if they wish.[citation needed] 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. 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 June 30, 2022, the allotment of the justices among the circuits is as follows:[184] Circuit Justice District of Columbia Circuit Chief Justice Roberts First Circuit Chief Justice Roberts 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). Process Main article: Procedures of the Supreme Court of the United States Term 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.[185] Case selection Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as cert; the court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case."[186] The court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law.[187] The party that appealed to the court is the petitioner and the non-mover is the respondent. All 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. There are 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,[188] parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact.[189] Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury.[190] 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: Resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution Correcting an egregious departure from the accepted and usual course of judicial proceedings Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the court. 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.[191][192][193][194] Oral argument A man speaking at a lectern before two supreme court justices. 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),[195] and during that time, the justices may interrupt the advocate and ask questions. 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. 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, earning the court 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.[196] 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.[197] Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library.[198] Decision 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.[199] 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: Opinion of the court: this is the binding decision of the Supreme Court. An opinion that more than half of the justices join (usually at least five justices, since there are nine justices in total; but in cases where some justices do not participate it could be fewer) is known as "majority opinion" and creates binding precedent in American law. Whereas an opinion that fewer than half of the justices join is known as a "plurality opinion" and is only partially binding precedent. Concurring: a justice agrees with and joins the majority opinion but authors a separate concurrence to give additional explanations, rationales, or commentary. Concurrences do not create binding precedent. Concurring in the judgment: a justice agrees with the outcome the court reached but disagrees with its reasons for doing so. A justice in this situation does not join the majority opinion. Like regular concurrences, these do not create binding precedent. Dissent: a justice disagrees with the outcome the court reached and its reasoning. Justices who dissent from a decision may author their own dissenting opinions or, if there are multiple dissenting justices in a decision, may join another justice's dissent. Dissents do not create binding precedent. A justice may also join only part(s) of a particular decision, and may even agree with some parts of the outcome and disagree with others. 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 is done via paper copies and is known as the "Running of the Interns".[200] 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.[201] 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.[202] This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945).[203] Published opinions Ambox current red Asia Australia.svg This section needs to be updated. Please help update this article to reflect recent events or newly available information. (August 2021) 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: Final bound volumes of U.S. Reports: 569 volumes, covering cases through June 13, 2013 (part of the October 2012 term).[204][205] Slip opinions: 21 volumes (565–585 for 2011–2017 terms, three two-part volumes each), plus part 1 of volume 586 (2018 term).[206] 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.[207][208] Citations to published opinions Further information: Case citation § Supreme Court of the United States 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 ___ 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 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.[209] 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, as well as 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.[209] 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."[210] 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.[209] Constraints 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!";[211] however, this alleged quotation has been disputed.[citation needed] 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.[212] Nixon ultimately complied with the Supreme Court's ruling.[213] Supreme Court decisions can be purposefully overturned by constitutional amendment, something that has happened on six occasions: Chisholm v. Georgia (1793) – overturned by the Eleventh Amendment (1795) Dred Scott v. Sandford (1857) – overturned by the Thirteenth Amendment (1865) and the Fourteenth Amendment (1868) Pollock v. Farmers' Loan & Trust Co. (1895) – overturned by the Sixteenth Amendment (1913) Minor v. Happersett (1875) – overturned by the Nineteenth Amendment (1920) Breedlove v. Suttles (1937) – overturned by the Twenty-fourth Amendment (1964) Oregon v. Mitchell (1970) – overturned by the Twenty-sixth Amendment (1971) 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.[214] 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). On the other hand, 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). Law clerks Further information: Lists of law clerks of the Supreme Court of the United States 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.[215] Generally, law clerks serve a term of one to two years. The first law clerk was hired by Associate Justice Horace Gray in 1882.[215][216] 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."[217] Most law clerks are recent law school graduates. The first female clerk was Lucile Lomen, hired in 1944 by Justice William O. Douglas.[215] The first African-American, William T. Coleman Jr., was hired in 1948 by Justice Felix Frankfurter.[215] 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.[215] 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.[218][219] "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.[218] 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."[218] 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."[218] A poll conducted in June 2012 by The New York Times and CBS News showed just 44% of Americans approve of the job the Supreme Court is doing. Three-quarters said justices' decisions are sometimes influenced by their political or personal views.[220] One study, using four-year panel data, found that public opinion of the Supreme Court was highly stable over time.[221] Criticism and controversies The Supreme Court has been the object of criticisms and controversies on a range of issues. Among them: Judicial activism The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology.[222] An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts,[222][223] and which was reversed in the 1930s.[224][225][226] An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion on the basis of the "right to privacy" inferred from the Fourteenth Amendment, a reasoning that some critics argued was circuitous.[222] Legal scholars,[227][228] justices,[229] and presidential candidates[230] have criticized the Roe decision. The progressive Brown v. Board of Education decision banning racial segregation in public schools has been criticized by conservatives such as Patrick Buchanan,[231] former associate justice nominee and solicitor general Robert Bork[232] and former presidential contender Barry Goldwater.[233] 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[234] President Abraham Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers."[235] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."[236] During different historical periods, the court has leaned in different directions.[237][238] Critics from both sides complain that activist judges abandon the Constitution and substitute their own views instead.[239][240][241] Critics include writers such as Andrew Napolitano,[242] Phyllis Schlafly,[243] Mark R. Levin,[244] Mark I. Sutherland,[245] and James MacGregor Burns.[246][247] Past presidents from both parties have attacked judicial activism, including Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan.[248][249] Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état,– slow-moving and genteel, but a coup d'état nonetheless."[250] Brian Leiter wrote that "Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power," and "Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial."[251] Individual rights Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;[252] Plessy v. Ferguson (1896) upheld segregation under the doctrine of separate but equal;[253] Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights.[254][255] Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver's licenses, especially poor and minority voters", according to one report.[256] Senator Al Franken criticized the court for "eroding individual rights."[257] 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 was "limited" to sovereign territory.[258] Power excess This criticism is related to complaints about judicial activism. George Will wrote that the court has an "increasingly central role in American governance."[259] It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009.[260] A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch.[260] 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."[261] Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."[262] The 2021–2022 term of the Court was the first full term following the appointment of three judges by Republican president Donald Trump — Neil 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 at the end of the term 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.[263][264][265] Several observers considered this a shift of government power into the Supreme Court, as well as a "judicial coup" by some Congresspeople including Representative Alexandria Ocasio-Cortez, urging action to reform the Supreme Court.[266][267] Courts are a poor check on executive power 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.[268][269] 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. Federal versus state power There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison[270] and Alexander Hamilton[271] argued in The Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments,[272][273][274][275] others argue that expansive federal power is good and consistent with the Framers' wishes.[276] 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.[277] 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."[278] Justice Alito said congressional authority under the Commerce Clause is "quite broad";[279] modern-day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.[278] 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.[280] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law."[281] Others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."[282] 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.[283][284] Secretive proceedings Further information: List of United States Supreme Court leaks The court has been criticized for keeping its deliberations hidden from public view.[285] According to a review of Jeffrey Toobin's 2007 expose The Nine: Inside the Secret World of the Supreme Court; "Its inner workings are difficult for reporters to cover, like a closed 'cartel', only revealing itself through 'public events and printed releases, with nothing about its inner workings.'"[286] The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives."[286] Larry Sabato complains about the court's "insularity";[262] a Fairleigh Dickinson University poll conducted in 2010 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.[287][288] More recently, several justices have appeared on television, written books and made public statements to journalists.[289][290] In a 2009 interview on C-SPAN, journalists Joan Biskupic of USA Today and Lyle Denniston of SCOTUSblog argued that the court is a "very open" institution with only the justices' private conferences inaccessible to others.[289] In October 2010, the court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they occur.[citation needed] Judicial interference in political disputes Some Court decisions have been criticized for injecting the court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals.[286][291][292][293][294][295] Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called political questions.[296] Not choosing enough cases to review Senator Arlen Specter said the court should "decide more cases";[257] on the other hand, although 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, 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.[289] Lifetime tenure Critic 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."[262] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.[297] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times."[246] Proposals to solve these problems include term limits for justices, as proposed by Levinson[298] and Sabato[262][299] as well as a mandatory retirement age proposed by Richard Epstein,[300] among others.[301] However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."[302] Accepting gifts and outside income The 21st century has seen increased scrutiny of justices accepting expensive gifts and travel. All of the members of the Roberts Court have accepted travel or gifts.[303] In 2012, Justice Sonia Sotomayor received $1.9 million in advances from her publisher Knopf Doubleday.[304] Justice Scalia and others took dozens of expensive trips to exotic locations paid for by private donors.[305] Private events sponsored by partisan groups that are attended by both the justices and those who have an interest in their decisions have raised concerns about access and inappropriate communications.[306] Stephen Spaulding, the legal director at Common Cause, said: "There are fair questions raised by some of these trips about their commitment to being impartial."[305] See also icon Politics portal flag United States portal icon Law portal Judicial appointment history for United States federal courts List of presidents of the United States by judicial appointments Lists of United States Supreme Court cases List of supreme courts by country List of pending United States Supreme Court cases Oyez Project Reporter of Decisions of the Supreme Court of the United States Selected landmark Supreme Court decisions See also: List of landmark court decisions in the United States Marbury v. Madison (1803, judicial review) McCulloch v. Maryland (1819, implied powers) Gibbons v. Ogden (1824, interstate commerce) Dred Scott v. Sandford (1857, slavery) Plessy v. Ferguson (1896, separate but equal treatment of races) Wickard v. Filburn (1942, federal regulation of economic activity) Brown v. Board of Education (1954, school segregation of races) Engel v. Vitale (1962, state-sponsored prayers in public schools) Abington School District v. Schempp (1963, Bible readings and recitation of the Lord's prayer in U.S. public schools) Gideon v. Wainwright (1963, right to an attorney) Griswold v. Connecticut (1965, contraception) Miranda v. Arizona (1966, rights of those detained by police) In re Gault (1967, rights of juvenile suspects) Loving v. Virginia (1967, interracial marriage) Lemon v. Kurtzman (1971, religious activities in public schools) New York Times Co. v. United States (1971, freedom of the press) Eisenstadt v. Baird (1972, privacy for unmarried people) Roe v. Wade (1973, abortion) Miller v. California (1973, obscenity) United States v. Nixon (1974, executive privilege) Buckley v. Valeo (1976, campaign finance) Bowers v. Hardwick (1986, sodomy) Bush v. Gore (2000, presidential election) Lawrence v. Texas (2003, sodomy) District of Columbia v. Heller (2008, gun rights) Citizens United v. FEC (2010, campaign finance) United States v. Windsor (2013, same-sex marriage) Shelby County v. Holder (2013, voting rights) Obergefell v. Hodges (2015, same-sex marriage) Bostock v. Clayton County (2020, discrimination on LGBT workers) McGirt v. Oklahoma (2020, tribal reservation rights) Dobbs v. Jackson Women's Health Organization (2022, abortion)

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