Earliest beginnings to Marshall
Main article: Marshall Court
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 a procedural issue.[4] The Court lacked a home of its own and had little prestige,[5] a situation not helped by the highest-profile case of the era, Chisholm v. Georgia, which was immediately repudiated by the Eleventh Amendment.The Court's power and prestige waxed during the Marshall Court (1801–1835).[6] Under Marshall, the Court established the principle of judicial review, including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[7][8] and made several important constitutional rulings giving shape and substance to the balance of power between the federal government and the states (prominently, Martin v. Hunter's Lessee, McCulloch v. Maryland and Gibbons v. Ogden).[9][10][11][12]
The Marshall Court also ended the practice of each justice issuing his opinion seriatim,[13] a remnant of British tradition,[14] and instead issuing a single majority opinion.[13] Also during Marshall's tenure, although beyond the Court's control, the impeachment and acquittal of Justice Samuel Chase in 1804-1805 helped cement the principle of judicial independence.[15][16]
From Taney to Taft
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.[17] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,[18] which may have helped precipitate the Civil War.[19] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution[12] and developed the doctrine of substantive due process (Lochner v. New York;[20] Adair v. United States).[21]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),[22] 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)[23] and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).[24]
The New Deal era
During the Hughes, Stone, and Vinson Courts (1930–1953), the Court gained its own accommodation in 1935[25] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby and United States v. Butler).[26] [27][28] 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.Warren and Burger
Main article: Warren Court
The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties.[29] It held that segregation in public schools violates equal protection (Brown v. Board of Education, Bolling v. Sharpe and Green v. County School Bd.)[30] and that traditional legislative district boundaries violated the right to vote (Reynolds v. Sims). It created a general right to privacy (Griswold v. Connecticut),[31] limited the role of religion in public school (most prominently Engel v. Vitale and Abington School District v. Schempp),[32][33] 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),[34][35]—and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona);[36] At the same time, however, the Court limited defamation suits by public figures (New York Times v. Sullivan) and supplied the government with an unbroken run of antitrust victories.[37]The Burger Court (1969–1986) expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade),[38] but divided deeply on affirmative action (Regents of the University of California v. Bakke)[39] and campaign finance regulation (Buckley v. Valeo),[40] and dithered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),[41] then that the death penalty itself was not unconstitutional (Gregg v. Georgia).[41][42][43]
Rehnquist and Roberts
Main article: Roberts Court
The Rehnquist Court (1986–2005) was noted for its revival of judicial enforcement of federalism,[44] 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).[45][46][47][48][49] 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),[50] 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).[51] The Court's decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000, became controversial.[52]The Roberts Court (2005–present) is regarded by some as more conservative than the Rehnquist Court.[53][54] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Twombly-Iqbal), abortion (Gonzales v. Carhart),[55] and the Bill of Rights, prominently Citizens United v. Federal Election Commission (First Amendment),[56] Heller-McDonald (Second Amendment),[57] and Baze v. Rees (Eighth Amendment).[58][59]
Composition
Size of the Court
Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.In 1866, at the behest of Chief Justice Chase, Congress passed an act 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. In 1869, however, the Circuit Judges Act returned the number of justices to nine,[60] where it has since remained.
President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned 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.[61] The plan, usually called the "Court-packing Plan", failed in Congress.[62] Nevertheless, the Court's balance began to shift within months when Justice van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice.[63]
Appointment and confirmation
The President of the United States appoints justices "by and with the advice and consent of the Senate."[64] Most presidents nominate candidates who broadly share their ideological views, although a justice's decisions may end up being contrary to a president's expectations. Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.
Back row (left to right): Sonia Sotomayor, Stephen G. Breyer, Samuel A. Alito, and Elena Kagan. Front row (left to right): Clarence Thomas, Antonin Scalia, Chief Justice John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg
Nevertheless, not every nominee has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, a nominee may be filibustered once debate has begun in the full Senate. No nomination for associate justice has ever been filibustered, but President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968. A president may also withdraw a nominee's name before the actual confirmation vote occurs, typically because it is clear that the Senate will reject them, most recently Harriet Miers in 2006.
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 new justice can take office.[66] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[67]
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, however, the process has taken much longer. Some believe this is because Congress sees justices as playing a more political role than in the past.[68]
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 (at most, less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and six associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.No president since Dwight Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts.[69] 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."[70] Such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.[70][71]
Tenure
The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign or retire.[72] Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805).[73] Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.[74]Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations such as the eleven years between Stephen Breyer's nomination in 1994 and the nomination of John Roberts in 2005 to fill the seat of Sandra Day O'Connor (though Roberts' nomination was withdrawn and resubmitted for the role of Chief Justice after Rehnquist died).
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, though his successor (John Tyler) made an appointment during that presidential term. Zachary Taylor likewise died early in his term, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who succeeded to the presidency after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a contraction in the size of the Court. Jimmy Carter is the only president who completed at least one full term in office without making a nomination to the Court during his presidency.
Three presidents have appointed justices who collectively served more than 100 years: Franklin D. Roosevelt, Andrew Jackson and Abraham Lincoln.[75]
