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Starting the Supreme Court
Article III of the U.S. Constitution says that "the judicial power of the United States shall be vested in one
supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish."
The article goes on to guarantee that federal judges "shall hold their offices during good behavior" (that is,
for life, unless they misbehave) and to limit the federal courts' jurisdiction. It doesn't say much else. Article I, which
deals with Congress, and Article II, which deals with the presidency, are much more detailed. The framers mostly left it to
Congress to decide how the federal courts should work.
Congress responded with one of its first-ever acts, the Judiciary Act of 1789. Drafted largely by Connecticut's Oliver
Ellsworth, who would later serve as chief justice himself, the act created a three-tiered federal judiciary, with one Supreme
Court, three regional circuit courts, and federal district courts for the states.
The first Supreme Court consisted of Chief Justice John Jay and five associate justices. (The number of justices, now nine,
has varied between six and ten over the years--and technically, Congress can change the number at any time.) When that first
Court convened in 1790, it had more curious onlookers than cases.
The job wasn't as cushy back then, either. Twice a year, the justices had to "ride circuit"--travel the country to hear
cases--with two justices assigned to each of the nation's three circuit courts. Traveling the country was tedious and sometimes
dangerous, and circuit court duties nearly made Chief Justice Jay resign. In 1793, after many complaints, Congress decided
one circuit ride per year would be enough. (Supreme Court justices would ride circuit until 1891, when Congress created the
federal appeals court system.)
Also in 1793, the Court made one of its first major decisions, in the case of Chisholm v. Georgia. The big question in
the case was whether citizens of one state could sue another state in federal court. The Supreme Court ruled that they could,
holding that to rule otherwise would "far deviate from the plain path of equality and impartiality." The decision proved highly
unpopular, especially among those concerned with states' rights. In response, Congress passed, and the states ratified, the
Constitution's 11th Amendment:
The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced
or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.
That reversal wasn't the end of the early Court's struggles. After John Jay resigned to become governor of New York in
1795, the Senate rejected President Washington's appointed replacement, John Rutledge. Washington then asked Virginia patriot
Patrick Henry to take the job, but Henry declined. In 1796, Oliver Ellsworth became chief justice, but the Court didn't really
get rolling until 1801, when Chief Justice John Marshall took the reins.
--Steve Sampson
KnowledgeNews is brought to you by Every Learner, Inc., an independent small
business dedicated to supporting lifelong learners. Copyright © 2005, Every Learner, Inc. All rights reserved.
Filibuster Derails Supreme Court
Appointment
October 1, 1968
In
June 1968, Chief Justice Earl Warren informed President Lyndon Johnson that he planned to retire from the Supreme Court. Concern
that Richard Nixon might win the presidency later that year and get to choose his successor dictated Warren's timing.
In
the final months of his presidency, Johnson shared Warren's concerns about Nixon and welcomed the opportunity to add his third
appointee to the Court. To replace Warren, he nominated Associate Justice Abe Fortas, his longtime confidant.
Anticipating Senate concerns about the prospective chief justice's
liberal opinions, Johnson simultaneously declared his intention to fill the vacancy created by Fortas' elevation with Appeals
Court Judge Homer Thornberry. The president believed that Thornberry, a Texan, would mollify skeptical southern senators.
A seasoned Senate vote-counter, Johnson concluded that despite
filibuster warnings he just barely had the support to confirm Fortas. The president took encouragement from indications that
his former Senate mentor, Richard Russell, and Republican Minority Leader Everett Dirksen would support Fortas, whose legal
brilliance both men respected.
The president soon lost Russell's support, however, because of administration delays
in nominating the senator's candidate to a Georgia federal judgeship. Johnson urged
Senate leaders to waste no time in
convening Fortas' confirmation hearings. Responding to staff assurances of Dirksen's continued support, Johnson told an aide,
"Just take my word for it. I know [Dirksen]. I know the Senate. If they get this thing drug out very long, we're going to
get beat. Dirksen will leave us."
Fortas became the first sitting associate justice, nominated
for chief justice, to testify at his own confirmation hearing. Those hearings reinforced what some senators already knew about
the nominee. As a sitting justice, he regularly attended White House staff meetings; he briefed the president on secret Court
deliberations; and, on behalf of the president, he pressured senators who opposed the war in Vietnam. When the Judiciary Committee
revealed that Fortas received a privately funded stipend, equivalent to 40 percent of his Court salary, to teach an American
University summer course, Dirksen and others withdrew their support. Although the committee recommended confirmation, floor
consideration sparked the first filibuster in Senate history on a Supreme Court nomination.
On October 1, 1968, the
Senate failed to invoke cloture. Johnson then withdrew the nomination, privately observing that if he had another term, "the
Fortas appointment would have been different." Johnson did not have another term and Nixon went on to nominate Judge Burger
for the court. So it is rare that there is a filibuster but if it happens there have been others.
Reference Items:
Henry J. Abraham. Justices and Presidents: A Political History
of Appointments to the Supreme Court. New York: Oxford University Press, 1992.
Kalman, Laura. Abe Fortas: A Biography.
New Haven: Yale University Press, 1990.
Urofsky, Melvin I., ed., The Supreme Court Justices: A Biographical Dictionary.
New York: Garland, 1994.
Copyright 2005 by PENN LLC. All rights reserved. Go ahead and forward this, in its entirety,
to others.
How To Get A Supreme Court Hearing
For more than two centuries, the United States Supreme Court has
been ruling on the nation's most important legal cases.
What sorts of cases does the Supreme Court actually hear?
If you happen to be an ambassador, you're in luck. Article III
of the U.S. Constitution gives original jurisdiction to the Supreme Court "in all cases affecting ambassadors, other public
ministers and consuls, and those in which a state shall be party." That means those cases go straight to the top.
But in other cases, the Constitution says, "the Supreme Court
shall have appellate jurisdiction, both as to law and fact." So, if you're a private citizen, you'll probably have to file
your case in a less-than-supreme court first. You'll also have to lose, then find grounds for an appeal.
In fact, you'll probably have to lose and appeal at least twice.
Most Supreme Court cases have already been tried in an original court and reviewed by at least one appeals court.
Just losing and appealing isn't enough. You also have to find
grounds for appeal that the Supreme Court finds appealing. Since 1925, federal law has enabled the Court to choose nearly
all of the cases it hears. And each year it chooses to hear fewer than 2 out of every 100 "petitions for writ of certiorari"
(basically, petitions for review) it receives.
Under the Court's own rules, such petitions are granted "only
for compelling reasons." What's a compelling reason? The Court's rules give several examples:
- "a United States court of appeals has entered a decision in conflict with the
decision of another United States court of appeals on the same important matter"
- a United States court of appeals "has decided an important federal question in
a way that conflicts with a decision by a state court of last resort" (generally, a state's own supreme court)
- a United States court of appeals "has so far departed from the accepted and usual
course of judicial proceedings . . . as to call for an exercise of this Court's supervisory power"
- "a state court of last resort has decided an important federal question in a
way that conflicts with the decision of another state court of last resort"
- "a state court or a United States court of appeals has decided an important question
of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a
way that conflicts with relevant decisions of this Court"
The rules make clear that the Court probably won't take your case
just because you think the trial court made a factual error or misapplied "a properly stated rule of law." You have to convince
the Court that your case raises an important question about how the law should be interpreted or applied.
In any given year, some 7,500 folks petition the Court for a writ
of certiorari. Naturally, the nine Supreme Court justices don't weed through all those petitions themselves. That job falls
to the justices' law clerks, most of whom are recent law school graduates.
Until the 1970s, law clerks for each of the justices reviewed
each of the petitions separately and reported back to their bosses privately. Nowadays, most of the justices have their clerks
participate in what's known as the "cert pool."
Basically, the cert pool divvies up the petitions and distributes
them randomly among participating clerks. The clerks then review the petitions assigned to them and write summaries that go
to all of the justices. Obviously, this system eliminates a lot of duplicated effort. But it has also been criticized for
giving the clerks too much power. (What if a clerk misses the point of an important case--or misrepresents it for ideological
reasons?)
In any event, you'll need to make enough of a splash in the cert
pool to impress at least four justices. Why four? Once a set of petitions has been reviewed, the justices hold a private conference
and vote on which of them to grant. Under the so-called "rule of four," any case that four justices vote to hear gets heard.
In the other cases, the decisions of the lower courts stand.
Most cases reach the Court through the appeals process, but there
are some extraordinary exceptions. Every now and then, the court grants a petition for "certiorari before judgment" and reviews
a case that's still pending before a lower appellate court. But the Supreme Court's rules say it will do this "only upon a
showing that the case is of such imperative public importance as to justify deviation from normal appellate practice."
The Court also occasionally grants "extraordinary writs"--which
may review the legality of an imprisonment, or command someone to take a certain action. But again, these are rare. To get
one, you have to convince the Court that your circumstances are "exceptional" and that "adequate relief cannot be obtained
in any other form or from any other court." Simply put, if you're hoping for an extraordinary writ, you'd better have an extraordinary
case.
Steve Sampson
KnowledgeNews is brought to you by Every Learner, Inc., an independent small
business dedicated to supporting lifelong learners. Copyright © 2007, Every Learner, Inc. All rights reserved.
What Speech Isn't Free?
Even with the Constitution's free speech protections, there are times when,
legally, we have to keep our big mouths shut.
So, when aren't you free to shoot from the lip? There are basically four types
of speech that the First Amendment doesn't protect: obscenity, incitement to illegal action, defamation, and fighting words.
There are also restrictions on things like advertising and harassment, but those will be covered another time.
The Constitution doesn't give you the right to be obscene (not that we really
think you'd want to be). Although the Supreme Court has struggled for years to define "obscenity," it has consistently maintained
that, whatever it is, it's not legally protected. The key test was established in Miller v. California in 1973. The
Court held that expressions are obscene if they meet all three of the following criteria:
- "The average person, applying contemporary community standards, would find that
the work, taken as a whole, appeals to the prurient interest."
- "The work depicts or describes, in a patently offensive way, sexual conduct specifically
defined by the applicable state law."
- "The work, taken as a whole, lacks serious literary, artistic, political or scientific
value."
The questions this test raises are pretty obvious. What's an "average" person?
What are "community standards," and who sets them? Who decides what counts as "serious literary, artistic, political or scientific
value"? Nevertheless, you still have to follow these rules--for as Justice Potter Stewart famously said about pornography,
"I know it when I see it."
Limit #2: Incitement to Illegal Action
In 1919, the Court held that "the most stringent protection of free
speech would not protect a man in falsely shouting fire in a theater and causing a panic." The justices weren't aiming to
guarantee the sanctity of your moviegoing experience. Rather, their point was that the First Amendment doesn't protect speech
that creates a "clear and present danger" of "substantive evils that Congress has a right to prevent."
More recent
cases have clarified this limitation, and left you with a fair amount of freedom. Basically, you're allowed to argue for anything--even,
say, the violent overthrow of the government. You just can't incite imminent illegal activity. For example, at a rally outside
IRS headquarters, saying "we should overthrow the government and dismantle the IRS!" would be protected speech. Saying "attack
those agents coming out the door!" would not.
Limit #3: Defamation
You also aren't free to go around damaging other people's reputations
by lying about them. That's defamation, and it basically comes in two forms. Slander is spoken defamation. Libel is written
(or otherwise recorded) defamation.
The Court has established fairly tough standards for public figures (like politicians
and celebrities) who accuse you of defamation. They have to prove not only that what you said was untrue, but also that your
lie showed "actual malice." A private citizen, on the other hand, can win a claim simply if you're careless about the facts.
Of course, it's easy to avoid defaming people. Just follow a version of mom's old rule: "If you don't have something nice
to say, don't say anything untrue." If what you say is true, it's not defamatory.
Limit
#4: Fighting Words
Suppose someone cuts in
front of you in line. If the colorful language you then direct toward that person is so abusive and insulting that fisticuffs
are likely to follow, you can't take refuge behind the Fighting Words. Fighting words--"those which by their very utterance
inflict injury or tend to incite an immediate breach of the peace"--aren't protected.
Basically, that means you're
not free to spew insults and abuse into another person's face. The police, or other authorities, can intervene and stop you
without violating your First Amendment rights. On the plus side, it follows that other people aren't free to spew insults
and abuse into your face, either. But then, why would anyone do something like that to a nice person like you?
--Jeffery Vail
KnowledgeNews is brought to you by Every Learner, Inc., an independent small
business dedicated to supporting lifelong learners. Copyright © 2008, Every Learner, Inc. All rights reserved.
Milestone Supreme Cases
1803
- The Marbury v. Madison case gave the Court a greater degree of
power as it was the first time a law passed by Congress was declared unconstitutional. This decision established the Court's
right to overturn acts of Congress - something that was not explicitly granted by the Constitution.
1819 - McCulloch v. Maryland
is significant because it allowed for a loose construction of the Constitution. The Court upheld the right of Congress
to create a Bank of the United States, ruling that it was a power implied but not enumerated by the Constitution.
1954 - Racial segregation in schools was invalidated in the Brown
v. Board of Education of Topeka case. The Court declared “in the field
of public education, the doctrine of ‘separate but equal’ has no place” and contending that “separate
educational facilities are inherently unequal.” 1963
- In the Gideon v. Wainwright case, a defendant's right to legal counsel
was guaranteed after the Supreme Court overturned the Florida felony conviction of Clarence
Earl Gideon, who had defended himself after having been denied a request for free counsel. The Court held that the
state violated the Fourteenth Amendment's due process clause by failing to provide Gideon
with counsel.
1973 - The Court ruled in the groundbreaking Roe
v. Wade case that a woman has the right to an abortion without interference from the government in the first
trimester of pregnancy, contending that it is part of her “right to privacy.” The Court did, however, grant states
the right to intervene in the later trimesters of pregnancy.
1978 - In the Regents
of the University of California v. Bakke case, the Court ruled that affirmative action was unfair if
it lead to reverse discrimination. The case involved the University of Calif., Davis, Medical School and Allan Bakke, a white
applicant who was rejected twice even though there were minority applicants admitted with significantly lower scores than
his. A closely divided Court ruled that while race was a legitimate factor in school admissions, the use of rigid quotas was
not permissible. Copyright 2009 by NextEra Media. All rights
reserved. Feel free to forward this, in its entirety, to others.
Chief Justice John Marshall
Looking back at the supremest supreme of them all--the man who, more
than anyone, made the U.S. Supreme Court what it is today: John Marshall.
John Marshall was, in many ways, the prototypical early American figure,
right down to the Virginia log cabin he was born in on September 24, 1755.
His mother was related to many of the oldest
families in Virginia, but his father, Thomas Marshall, was a man of middling means. Lack of money didn't mean lack of ambition,
though, and Tom Marshall rose in local society--and gave his son a classical education so he could do the same.
When
the American Revolution broke out, Marshall joined the Continental Army. He served under George Washington for three years,
including wintering with him at Valley Forge--an experience that changed the young patriot forever. He determined to spend
the rest of his career fighting on behalf of the American nation as it took shape.
Lawyering Up
Unlike
some Virginia gentry, Marshall didn't have a country estate to retire to--he had to make a living. So he practiced law, and
even though most of his legal training was informal, he was soon counted among Virginia's most eminent lawyers.
He
was also elected to the Virginia legislature, and played an important role in ensuring that his state ratified the country's
new constitution in 1788. Allied with the Federalists, the party most in favor of a strong federal government, Marshall shot
up the political ladder--though he declined offer after offer to join the new federal government's executive branch.
In
1799, he was elected to Congress. Finally, in 1800, President John Adams convinced him to become secretary of state. Less
than a year later, as one of his final appointments, the outgoing President Adams made Marshall chief justice of the Supreme
Court.
Making the Court Supreme
At the time, the U.S. Supreme Court was supreme in name only.
Many people followed Thomas Jefferson, for one, in arguing that no court should have the authority to overturn laws passed
by Congress. But Marshall's courtroom experience told him otherwise.
Practicing law had taught him that popular assemblies
tend to make laws that are vague, contradictory, and all too often dedicated to the interests of the majority, without regard
to the minority's rights. His view: the Supreme Court should measure laws against the U.S. Constitution and, if necessary,
strike them down. Congress makes the laws, but the Supreme Court, Marshall thought, had the power of "judicial review."
In
34 years as chief justice, Marshall wrote a series of judgments that asserted the constitutional basis for both the federal
government's authority and the authority of the Supreme Court over the law. In Marbury v. Madison (1803) and Fletcher v. Peck
(1810), the Supreme Court for the first time struck down federal and state laws as unconstitutional, while Martin v. Hunter's
Lessee (1816) and Cohens v. Virginia (1821) affirmed its appellate jurisdiction over state courts.
Leaving
It Open to Future Courts
Often Marshall's rulings were controversial, and there were periodic attempts to
limit the Supreme Court's powers--until, just before his death in 1835, Marshall became convinced that the Constitution was
doomed. The Court's opponents, he said, would like to "explain away the Constitution of our country, and leave it a magnificent
structure, indeed, to look at, but totally unfit for use."
Ultimately, it took the Civil War to answer the question
of states' rights and realize Marshall's vision: of the federal government above the states, the Supreme Court at the head
of the judiciary, and the Constitution above them all. And it has taken lots of Congresses and lots of Courts to continually
negotiate every complicated detail.
Mark Diller
September 8, 2005
Copyright, 2005, Knowledge News.
All rights reserved.
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