U.S. Supreme Court

1. Selecting Supreme Court Justices

2. The Justices of the Supreme Court

3. Famous Justices

4. Rejections

5. Presidential Nominations of Current Justices

6. Eras in the Court's History:  1953 to Today

7. The Court of Chief Justice John Marshall

8. Bringing Cases to the Supreme Court

1.  Selecting Supreme Court Justices

The U.S. Constitution does not specify the number of U.S. Supreme Court Justices and the number has varied.  But since the Civil War, the number has remained constant at nine.  Congress could change the number and President Franklin D. Roosevelt tried to pack the Court in 1937 after it had struck down part of the First New Deal as unconstitutional.  The Court avoided this enlargement of its numbers through what is called "the switch in time that saved nine."

The number nine has become traditional and it unlikely to be changed for blatantly political reasons.

Supreme Court Justices are appointed in the same manner as all Federal Constitutional Judges, namely by the President with the "advise and consent" of the U.S. Senate for life terms without a reduction in pay.  This is to assure judicial independence.

Since Supreme Court Justices have life tenure, these appointments are viewed as some of the most important any President can make during his limited term in office.  Judges can not be pressured or lobbied once in office.  This makes their selection process especially important.

Factors to be considered:

2.  The Justices of the U.S. Supreme Court

Chief Justices of the U.S. Supreme Court

1.  John G. Roberts, Jr.  (2005 - ) b. 1955;  George W. Bush

        William H. Rehnquist, VA  (1986 - 2005 ) b. 1925; d.  Sept. 3, 2005   Reagan

         Warren E. Burger (1969 - 1986), b. 1907; Nixon

         Earl Warren (1953 - 1969), b. 1891; d. 1974  Eisenhower

         Frederick M. Vinson (1946 - 1953), b. 1890; d. 1953

         Harlan F. Stone (1941 - 1946), b. 1872; d. 1946

         Charles E. Hughes (1930 - 1941) b. 1862; d. 1948

         William H. Taft (1921 - 1930), b. 1857; d. 1930

         Edward D. White (1910 - 1921) b. 1845; d. 1921

         Melville W. Fuller (1888 - 1910); b. 1933; d. 1910

         Morrison R. Waite (1874 - 1888), b. 1816; d. 1888

         Salmon P. Chase (1864 - 1873), b. 1808; d. 1873

         Roger B. Taney (1836 - 1864), b. 1777; d. 1864

         John Marshall (1801 - 1835), b. 1755; d. 1835

         Oliver Ellsworth (1796 - 1800), b. 1745; d. 1807

         John Rutledge (1795), b. 1739; d. 1800

         John Jay (1789 - 1795), b. 1745; d. 1829

Associate Justices of the U.S. Supreme Court

2.  John Paul Stevens, IL (1975 - ), b. 1920  Ford

     William O. Douglas (1939 - 1975), b. 1898; d. 1980; Roosevelt

3.  Antonin Scalia, VA (1986 - ), b. 1936  Reagan

     William H. Rehnquist, VA (1971 - 1986) Nixon

     Hugo L. Black (1937 - 1971), b. 1886; d. 1971 Roosevelt

4.  Anthony M. Kennedy, CA  (1988 - ), b. 1936  Reagan

     Lewis F. Powell Jr. (1972 - 1987), b. 1908 Nixon

     John M. Harlan (1955 - 1971), b. 1899; d. 1971; Eisenhower

5.  Sonia M. Sotomayor, NY (2009 - ) b.  1954; Obama

     David H. Souter, NH  (1990 - 2009), b. 1939; Bush, H. W.

     William J. Brennan Jr. (1956 - 1990), b. 1906 Eisenhower

6.Clarence Thomas  (1991 - ), b.          Bush, H.W.

     Thurgood Marshall, NY (1967 - 1991), b. 1909 Johnson

     Tom C. Clark  (1949 - 1967), b. 1899; d. 1977 Truman

7.  Ruth Bader Ginsburg  (1993 - ) b.          Clinton

     Harry A. Blackmun, MN  (1970 - 1993), b. 1908  Nixon

     Abe Fortas (1965 - 1969), b. 1910; d. 1982 Johnson

     Arthur J. Goldberg (1962 - 1965), b. 1908 Kennedy

     Felix Frankfurter (1939 - 1962), b. 1882; d. 1962              Roosevelt

     Louis D. Brandeis (1916 - 1939) b, 1856; d. 1941 Wilson

8.  Stephen G. Breyer (1994 - ) b.                      Clinton

     Byron R. White, CO (1962 - ), b. 1917  Kennedy

     Charles E. Whittaker (1957 - 1962), b.1901; d.1973; Eisenhower

     Stanley F. Reed (1938 - 1957), b. 1884; d. 1980 Roosevelt

     Benjamin N. Cardozo (1932 - 1938) b. 1870; d. 1938

     Oliver Wendell Holmes (1902 - 1932) b. 1841; d. 1935

3.  Famous Justices

Oliver Wendell Holmes (1902 - 1932) b. 1841; d. 1935

Louis D. Brandeis (1916 - 1939) b, 1856; d. 1941

Benjamin N. Cardozo (1932 - 1938) b. 1870; d. 1938

Hugo L. Black (1937 - 1971), b. 1886; d. 1971

Stanley F. Reed (1938 - 1957), b. 1884; d. 1980

Felix Frankfurter (1939 - 1962), b. 1882; d. 1962

Tom C. Clark  (1949 - 1967), b. 1899; d. 1977

John M. Harlan (1955 - 1971), b. 1899; d. 1971

Charles E. Whittaker (1957 - 1962), b. 1901; d. 1973

Arthur J. Goldberg (1962 - 1965), b. 1908

Abe Fortas (1965 - 1969), b. 1910; d. 1982

4.  Rejections

Harriet Miers, nominated and withdrawn by George W. Bush in October 2005.  Under intense pressure from right-wing fundamentalist, conservative Republicans--Bush's own political base, the nomination was withdrawn under fire at the end of October. This major political Bush blunder was camouflaged under the rationalization that executive privilege might be impaired if documents regarding her work as White House Counsel would have to be disclosed before Senate hearings.  Miers was a lackluster candidate with no judicial experience or significant track record on constitutional law.  Bush's "trust me" and smirking implication that her fundamentalist religious affiliation made her safe on the abortion issue did not work.  The Bush base rebelled let by the conservative punditry.  Miers never got a hearing with the Senate or an up and down vote as conservatives have been demanding from Democrats.  This withdrawal marks a major setback for the Bush presidency.  It was a self-inflicted wound.  Miers was replaced with the nomination of Samuel Alito.

Douglas Ginsburg, Reagan appointment, 1987 (smoked pot)  Reagan finally nominated Anthony Kennedy, who was confirmed in 1988.

Robert Bork, Reagan's first choice to replace Lewis F. Powell, Jr. Nominated in 1987.  Rejected largely for his legal philosophy.  He was an ultra-conservative, but brilliant.  Political right has never forgiven this rejection.

Clement Haynsworth, Nixon appointment. Another Southerner with racist tinge. Second consecutive rejection, following Carswell. Nixon finally appointed Justice Lewis F. Powell, Jr. in 1972

G. Harold Carswell, Nixon appointment. Southerner with racist tinge and mediocre.  Senator Mundt asked "what's wrong with appointing a mediocre person to the Court?"  Vacancy arose when Justice John M Harlan died in office in 1971.  

Abe Fortas, Johnson's choice for Chief Justice in 1968 was withdrawn under pressure in 1968.  He received a $20,000/year stipend for being on the Board of Directors of the Parva Foundation. Fortas resigned from court as Associate Justice because of the appearance of impropriety. This gave Pres Nixon the opportunity to nominate two justices.  Completely changed the direction of the Supreme Court.  Opened door to appointments of Warren E. Burger, as Chief Justice, and Harry Blackmun, as Associate Justice, to the court.

5. Presidential Nominations of Current Justices

Barak H. Obama nominations:

Sonia Maria Sotomayor Nominated on May 26, 2009

    1954 -- Born June 25, 1954 in the Bronx, New York City of Puerto Rican descent

    1976 --Princeton University , AB summa cum laude

    1979 -- Yale Law School.  Editor of Yale Law Journal

    1979 - 1984 -- Assistant District Attorney, New York City

    1984 - 1992 -- Private Practice

    1992 -  1998 -- Judge for the U.S. District Court for the Southern District of New York
                            Nominated by by President George H. W. Bush in 1991

    1998 - 2009 -- Judge for the U.S. Court of Appeals for the Second Circuit.
                            Nominated by President Bill Clinton in 1997.
 

    2009 -         --  Associate Justice of the U.S. Supreme  Court

George W. Bush nominations:

Samuel A. Alito Jr.  Nominated on October 31, 2005

    1950 -- Born April 1, 1950 in Trenton, N.J.
    1972 -- AB, Princeton
    1975 -- JD, Yale
    1981 - 1985 -- Assistant to the U.S. Solicitor General
    1985 - 1987 -- Deputy Assistant to the U.S. Attorney General
    1987 - 1990 -- US. Attorney for the District of New Jersey
    1990 - 2005 -- Judge, U.S. Court of Appeals for the Third Circuit
    2005 -          --  Associate Justice, U.S. Supreme Court (nominee)
   

Harriet Miers Nominated on October 3, 2005.  Withdrawn October 27, 2005.  3rd woman nominated for the court to replaces Sondra Day O'Conner.  Nomination withdrawn under conservative pressure from Bush's own political base.

1945   —Born in Texas
1970         --Graduated from Southern Methodist University Law School
1970-1972—Clerked for U.S. District Court Judge Joe Estes
1972-2001—Joined Texas law firm, Locke, Purnell
1985        —Elected president of the Dallas Bar Association
1986-1989—Member of the State Bar board of directors
1989-1991—Elected and served one term on the Dallas City Council
1992        —Elected president of the Texas State Bar
1993-1994—Worked as counsel for Bush's gubernatorial campaign
1995-2000—Appointed chairwoman of Texas Lottery Commission by Gov. George Bush
1996         —Became president of Locke, Purnell, and the first woman to lead a major Texas law firm
1998         —Presided over the merger of Locke, Purnell with another big Texas firm, Liddell, Sapp, Zivley, Hill & LaBoon, and became co-managing partner of the resulting megafirm, Locke Liddell & Sapp
2000         —Represented Bush and Cheney in a lawsuit stemming from their dual residency in Texas while running in the Presidential primary
2001         —Selected as staff secretary for President Bush
2003         —Promoted to Deputy Chief of Staff for Policy
2004        —Selected as White House Counsel;
2005        --Nominated to U.S. Supreme Court at age 60

John Glover Roberts, Jr. ('05);
originally nominated to replace Sandra Day O'Conner;
upon death of Chief Justice William Rehnquist, President George W. Bush nominated him to be the 17th Chief Justice of Supreme Court.

1955, January 27.  Born in Buffalo, NY
Grew up in Indiana. Catholic.  Went to Catholic boarding school.
1976, BA summa cum laude, Harvard University
1979, graduated magna cum laude, Harvard Law School

1981 to 1982, Special Assistant to U.S. Attorney General William French Smith. 1982 to 1986, Associate Counsel to the President under White House Counsel Fred Fielding.

1986 to 1989, Associate at the Washington, D.C.-based law firm of Hogan & Hartson.

1989 - 1993, Served in the first Bush administration as Deputy Solicitor General. In this capacity, Roberts, who reported to Solicitor General Kenneth W. Starr, argued 39 cases for the government before the Supreme Court, prevailing in 25 of them.
1993 to 2003.  Private practice as a partner in Hogan & Hartson.
 

2003 to 2005, Judge on the United States Court of Appeals for the District of Columbia Circuit.

2005.  On July 19, 2005, Roberts was nominated by President George W. Bush to fill a vacancy on the U.S. Supreme Court, which had been left by the retirement of Associate Justice Sandra Day O'Connor. Following the September 3 death of William H. Rehnquist, Bush withdrew Roberts's nomination as O'Connor's successor, and on September 6, sent the United States Senate notice of Roberts' new nomination to the position of Chief Justice.

On September 22, the Senate Judiciary Committee approved the nomination by a vote of 13-5. On September 29, Roberts was confirmed by the full Senate by a vote of 78 to 22. Hours after confirmation, he was sworn in by Associate Justice John Paul Stevens at the White House; at 50, Roberts is the youngest man to have become Chief Justice since John Marshall.

See Wikipedia for more information. http://en.wikipedia.org/wiki/John_G._Roberts_Jr.#Early_life_and_education

Clinton appointments:

     Ginsburg ('93) 2nd woman, Breyer ('94)  both easy nominations

George H. W. Bush appointments:

     Souter ('90), Thomas ('91) bitter fight.  conservative black.    

Reagan appointments:

      O'Conner ('81), Rehnquist, chief justice, ('86), Scalia ('86), Kennedy ('88) after Bork and Ginsberg were rejected.

Carter appointments:

     none  

Ford appointment:

     Stevens ('75)

Nixon appointments:

     Burger, chief justice, (69), Blackmun ('70), Rehnquist (71), Powell ('72),

6.  Eras in the Court's History
1953 to Today

The Roberts Court 2005 -

The Rehnquist Court 1986 - 2005

Very conservative chief justice.  Until Clinton appointments to court it looked like Roe v. Wade might be overturned.  Since Clinton, Court has a moderate majority (1994).

The Warren Burger Court 1969 - 1986

More conservative than Warren Court but still moderate.  Roe v. Wade, the case that legalized abortion, written by Blackmun was most important and controversial one.   The Rights of Criminal Defendants are being restricted.

  U.S. v. Robinson 414 U.S. 218 (1973) "allowed police to conduct more extensive searches of suspects arrested for traffic offenses." p. 506 Schmidt, 2nd Ed.

U.S. v. Calandra 414 U.S. 338 (1974) ruled that evidence secured illegally by police can be used in grand jury proceedings." p. 506 Schmidt, 2nd Ed.

McKeiver v. Pennsylvania, 403 U.S. 528 (1971) "brought to a halt the process of extending to the juvenile court the procedural requirements applicable in other criminal proceedings."  p. 506 Schmidt, 2nd Ed.  

Abortion Rights.  Roe v. Wade 410 U.S. 113 (1973) is based on Griswald v. Connecticut (1965) and the right of privacy.

Affirmative Action.  Regents of the University of California v. Bakke, 438 U.S. 265 (1978) partially upheld affirmative action plans based on race but denied numerical quotas.

Limits on Presidential Power .  New York Times Company v. U.S., 403 U.S. 713 (1971), the so-called Pentagon Papers Case, court denied prior restraint on a newspaper in the name of national security.

United States v. Nixon, 418 U.S. 683 (1974), court limited president's claim of executive privilege and forced Nixon to turn over the Watergate tapes made in the Oval Office.

Earl Warren Court 1953 - 1969

Emphasized personal rights over property rights.

Emphasized national standards over state standards.

Civil rights cases .  

Brown v. Board of Education of Topeka, Kansas (Brown I) 347 U.S. 483 (1954)

Brown v. Board of Education (Brown II) 349 U.S. 294 (1955)

Due Process Cases      

Gideon v. Wainwright 372 U.S. 335 (1963)

Miranda v. Arizona 384 U.S. 436 (1966)

Reapportionment

  Baker v. Carr (1962)

 Reynolds v. Sims (1964)

7.  The Court of Chief Justice John Marshall 
(1801 - 1835)

     Marbury v Madison (1803)  judicial review

     McCulloch v Maryland (1817) implied powers

     Gibbons v. Ogden (1824) differentiated between intra- and inter-state commerce and gave the national government strong powers over inter-state commerce.  

     Barron v Baltimore (1833) 
              U.S. Bill of Rights does not apply to states.

8.    Bringing Cases to the U.S. Supreme Court

A few cases reach the Supreme Court through certification for U.S. Courts of Appeal.

Most cases reach the US. Supreme Court through a petition for a writ of certiorari.

If four of the nine judges agree, the writ is granted and the U.S. Supreme Court will hear the case.  Court decides for itself whether it will hear the case.  If four judges do not agree, then the writ is denied.  No reasons are given.  No further appeal is possible.

A few cases reach the court through certification.  This happens when two U.S. Courts of Appeal reach different decisions on a similar point of law.

Once the U.S. Supreme Court has agreed to hear a case, both sides submit written briefs explaining their positions.  Rebuttal briefs are then written.  Third parties may write amicus briefs.  After all the brief writing is over, the Court may grant oral arguments.  During this time, both sides may have one hour each to summarize their written statements.  The judges often interrupt and ask questions during this oral argument phase.  Through the questions they ask, reporters may gleam the opinions of the judges.

After oral arguments are over, the judges retire to chambers and discuss the case.   After they have finished talking about it, the judges vote with the most junior member on the court voting first.  The Chief Justice votes last.  If the Chief Justice votes with the majority, then he assigns the writing of the opinions.  If not, then the most Senior Associate Justice voting with the majority assigns the writing of the opinions.

Majority Opinion
Concurring Opinion
Dissenting Opinion

The written opinions of the Supreme Court make up the case law of the court.  Each opinion serves as precedent for future cases.  This is called stare decisis.

 Updated October 4, 2005
Copyright Dr. Harold Damerow