The Supreme Court
Judicial Power (Art. III, § 1)
The judicial vesting clause of the U.S. Constitution (Art. III, § 1) mandates that there must be a Supreme Court which serves as the highest court in the United States.
Supreme Court justices are appointed for life (or until they choose to retire).
Number of Justices (Judiciary Act of 1869)
The Constitution does not explicitly state how many justices are to sit on the Supreme Court, leaving it to Congress to decide.
As a result, political maneuvering in Congress has caused the number of justices on the Court to fluctuate over time, going as low as 5 and as high as 10.
In 1869, Congress passed the Judiciary Act of 1869 which set the number of justices on the Supreme Court at 9, where it has remained ever since, and required that at least 6 justices be present to constitute a quorum.
A justice may not be available on a case because, for example, they are recovering from surgery or have recused themselves from a case because of a conflict of interests.
Majority Wins
Cases brought before the Supreme Court are determined by a simple majority of the justices present (i.e. 5 if all 9 justices are present).
In the event of a tie, the ruling of the lower court that last ruled on the case stands.
For example, suppose that a case which has been ruled on by a circuit court reaches the Supreme Court. And suppose that a justice on the Supreme Court has recused herself from the case. If the case where to result in a 4-4 tie, the ruling of the circuit court would stand.
Three Routes by Which a Case Gets to the Supreme Court (Art. III, § 2)
A case may reach the Supreme Court through one of three routes:
A case dealing with a federal issue works its way up through the federal court system. This is the most common way in which a case reaches the Supreme Court.
If one of the parties to the case is a state government, the case must automatically be considered by the Supreme Court. Likewise, if the case involves a foreign diplomat, it too must automatically be considered by the high court. It is thus said that the Supreme Court has “original jurisdiction” over disputes involving a state government or a foreign diplomat.
An appeal of a ruling by a state supreme court if the case deals with a constitutional issue (the highest court in a state, state supreme courts have the final say on the interpretation of state laws).
The Federal Court System
The most common way a case reaches the Supreme Court is by working its way up the federal court system.
Below the Supreme Court in the system of federal courts are the 94 district courts and 13 circuit courts (also known as courts of appeals).
All federal cases start out in the district courts. The loser in a district court ruling may then appeal for a circuit court to consider the case, in the hope that a circuit court may grant a more favorable ruling.
Only after a circuit court issues a ruling may the loser in that ruling appeal to the Supreme Court.
But just because a circuit court’s ruling is appealed, doesn’t necessarily mean the Supreme Court will take up the case.
That’s because, for a case to come before the Supreme Court, the court must choose to consider it.
It has been the Court’s custom to use the “rule of four” to decide which appeals to consider.
This unwritten “rule of four” states that for an appeal to be heard by the Supreme Court, four (or more) of the nine justices on the Court must wish to consider the case.
In a given year, the Supreme Court receives around 7,000-8,000 appeals. But due to limited time and resources, the Court only accepts about 100-150 of these cases.
The result is that most cases never make it anywhere near the Supreme Court because, given its limited capacity to consider cases, it chooses which cases to consider very carefully.
A case has a higher likelihood of being selected by the Supreme Court if:
The justices deem it to be of national importance. For example, in 2000 the Supreme Court infamously ruled on Bush v. Gore, a case that determined the outcome of the 2000 presidential election.
Two different circuit courts have issued rulings that are in conflict with each other (i.e. split decisions).
It believes a circuit court may have issued a ruling that is not consistent with federal law.
If the Court’s ruling on the case will set legal precedent.
If a case does defy the odds and make it to the Supreme Court, the Court’s ruling is final and may not be appealed (because there is no higher court to appeal to).
Note that even if the Supreme Court decides not to consider an appeal, it does not necessarily mean that the Supreme Court endorses or agrees with the ruling of the circuit court.
It does, however, mean that the ruling of the circuit court stands.
Original Jurisdiction: Disputes Between States & Cases Involving Foreign Diplomats (Art. III, § 2, cl. 2)
The Constitution gives the Supreme Court original jurisdiction over two types of cases.
The first type is cases involving a dispute between state governments.
Such cases are to be automatically considered by the Supreme Court, rather than by one of the lower federal courts.
An example of a case reaching the Supreme via this route is Virginia v. Tennessee (1893) which dealt which a border dispute between that states of Virginia and Tennessee.
These types of disputes are uncommon and therefore rarely come before the high court.
The second type of case over which the Supreme Court has original jurisdiction are those involving a foreign diplomat.
Again, these types of cases are extremely rare.
Appointment of Justices (Art II, § 2, cl. 2)
When a vacancy occurs on the high court because of the death or retirement of a justice, the president nominates a candidate to fill the opening.
The Senate, after conducting hearings and questioning the candidate, votes on whether or not to confirm the individual to the Court.
Approval by the Senate requires a simple majority of the senators present.
Judicial Review (Judiciary Act of 1801; Marbury v. Madison; Judiciary Act of 1789; Art VI. § 2)
Fierce intellectual and philosophical battles between the so-called “founding fathers” (the handful of colonists who led the American Revolution against the British Empire) helped shape the final version of the U.S. Constitution.
But the conflicts between the founders did not end when the ink dried on the document that would outline the young nation’s supreme law on September 17, 1787 in Philadelphia.
Numerous subsequent political clashes, such as those between Alexander Hamilton and Thomas Jefferson over the role of banks and finance in American society, left lasting impacts on the American legal, economic, financial, and political systems.
One of the early clashes that would, incidentally, have a lasting impact on the U.S. legal system was between the second President of the United States, John Adams of the Federalist Party, and the third President, Thomas Jefferson of the Democratic-Republican Party.
Jefferson had defeated an incumbent President John Adams in the election of 1800, thwarting Adams’ hopes for a second term.
And the Federalists had lost control of both chambers of Congress to the anti-federalist Democratic-Republicans.
On the way out the door, Adams hoped to frustrate the incoming President-elect Jefferson’s efforts to implement his anti-federalist policies by taking two steps that would have a lasting impact even after Adams was out of office.
One was appointing his Secretary of State, John Marshall, as the new Chief Justice of the Supreme Court, filling a vacancy left by the resignation of former Chief Justice Oliver Ellsworth.
Marshall would thus spend one month simultaneously serving as both Chief Justice of the Supreme Court and Secretary of State, until Jefferson assumed office and appointed his own Secretary of State.
The other was having the outgoing Federalist Congress pass, and signing into law, the Judiciary Act of 1801 which created new courts, and therefore, new judgeships.
Adams would use the Act to appoint 42 new justices of the peace and 16 new circuit court judges who were sympathetic to the Federalist Party’s belief in a strong federal government, before Jefferson assumed office.
For these new judicial appointees to assume office, their commission (a letter of appointment) had to be delivered by Adam’s Secretary of State John Marshall. That is, the appointees had to receive a physical piece of parchment in order to assume office.
However, the frenzied and hurried nature of the Federalist Party’s machinations to frustrate the incoming anti-federalists meant that some of Adams’ appointments did not receive their commissions before Jefferson acceded to office.
And when Thomas Jefferson assumed office, he ordered his new Secretary of State, James Madison, not to deliver the remaining commissions.
One of the new appointees whose commission was not delivered in time was William Marbury, who had been appointed Justice of the Peace for Washington D.C.
So, after sending a letter to Madison informing him of his intentions, Marbury asked the Supreme Court to compel James Madison to deliver his commission by issuing a “writ of mandamus” (a command to a government official to perform a specific act that is required by law).
The result was a landmark legal case known as Marbury v. Madison (1803).
As discussed above, Art III. § 2 of the U.S. Constitution establishes that the only legal cases over which the Supreme Court has original jurisdiction (that is, the case must automatically be heard by the high court) are those involving disputes between states or those involving foreign diplomats.
Other cases dealing with federal matters must work their way up the hierarchy of federal courts.
But in 1789 Congress passed, and President Washington signed into law, the Judiciary Act of 1789.
Section 13 of this Act decreed that the Supreme Court shall have the authority to grant writs of mandamus in original, rather than appellate, jurisdiction, in contradiction to the Constitution’s limitations on the original jurisdiction of the Court.
And it was this statute that, in conflict with the Constitution, theoretically granted the Supreme Court the authority to issue in original jurisdiction the writ of mandamus requested by Marbury.
But the Supremacy Clause of the Constitution (Art VI. § 2) states that the Constitution “shall be the supreme law of the land and the judges in every state shall be bound thereby.”
So the Court ruled that, while Jefferson’s order for Madison not to deliver Marbury’s commission was illegal, the Act that enabled the Supreme Court to issue writs of mandamus in original jurisdiction was unconstitutional, and therefore, null and void.
On these grounds, the Supreme Court concluded that it could not compel Madison to deliver Marbury’s commission.
This ruling greatly expanded the high court’s claims of its own powers: it introduced the concept of “judicial review,” the capacity of the Supreme Court to rule legislation passed by Congress as being null and void if it does not adhere to the Constitution.
The Court’s justices argued that, if they are to apply the law to particular cases, they must also be able to state what the law is. And if in the process of interpreting the law they conclude that a certain piece of legislation conflicts with the Constitution, then that law may not be used when determining how to rule. In other words, the unconstitutional legislation is struck down as invalid.
Authoring the Court’s unanimous opinion on the case, Chief Justice John Marshall stated:
It is emphatically the province and duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret that rule. If two laws conflict with each other, the Courts must decide on the operation of each.
He further stated:
[A] law repugnant to the Constitution is void, and that courts, as well as other departments, are bound by that instrument.
In a masterstroke, John Marshall and the other justices had strategically traded away the Supreme Court’s authority to issue writs of mandamus in original jurisdiction for the authority of being the ultimate arbiter of what is and is not constitutional.
In so doing he ensured, from a political perspective, that the Court would continue to be a thorn in the side of anti-federalists.
From a legal perspective, he consolidated the high court’s position as one of three co-equals branches of the federal government.
Today the Supreme Court continues to be the ultimate arbiter of whether or not legislation passed by Congress is constitutional.
And groups or individuals who deem a piece of legislation to be unconstitutional will often seek to get the law thrown out by arguing its supposed invalidity to the Supreme Court.
A recent example of this was the furious legal battle fought over the constitutionality of Obamacare’s individual mandate provision which requires individuals to either obtain health insurance or pay a penalty fee.
Ultimately, the high court ruled that the provision is not in conflict with the Constitution and allowed the law to stand.
Supreme Court Justices Can Be Impeached (Art. 1, § 2, cl. 5; Art. 1, § 3, cl. 6; Art. 1, § 3, cl. 7; Art. 2, § 4; Art. 3, §1)
The House of Representatives has the authority to impeach a Supreme Court justice.
If the House chooses to impeach a Supreme Court justice, the Senate then tries the justice and can, with the support of 2/3 of the senators present, remove the justice from office.
A Supreme Court justice can be impeached for treason, bribery, or "other high crimes and misdemeanors."
The inclusion of the imprecise phrase "other high crimes and misdemeanors" gives the House significant latitude to determine what constitutes an impeachable offense.
The House has only impeached a Supreme Court justice once: Justice Samuel Chase was impeached in 1805, though he was acquitted of the charges against him by the Senate.
Written By: Aiden Singh Published: July 15, 2020