The Supreme Court: The Court of Last ResortEssay Preview: The Supreme Court: The Court of Last ResortReport this essayThe Supreme Court: The Court of Last ResortJennifer F. LongCriminal Justice, CJ 6622Dr. OConnor29 September 2003At the apex of our federal court system stands the United States Supreme Court. It stands as the ultimate authority in constitutional interpretation and its decision can be changed only by a constitutional amendment. Two documents are responsible for its creation which is the Constitution, which explicitly creates the Supreme Court, and the Judiciary Act of September 24, 1789. The Supreme Court is the only court named in the constitution laying out the Courts basic jurisdiction, identifying the mode of selection and tenure for justices. Under Article III, Section 1 of the Constitution provides that “[t]he 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.” Article III establishes the Court as the chief authority of the judicial branch making it equal to the executive and legislative branches (Lieberman, 2003, p 3).
The Judiciary Act of 1789 not only set up the federal court system and used the Courts jurisdiction under the Constitution as a basis for granting it broad powers that are recognized everywhere. According to Abraham (1983), “There is no gainsaying the importance and the majesty of the most powerful of courts, not only in the United States, but the entire free world (p. 19).” The French political observer Alexis de Tocqueville noted the uniqueness of the Supreme Courts in the history of nations and jurisprudence. He stated, “The representative system of government has been adopted in several states of Europe, but I am unaware that any nation of the globe has hitherto organized judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people (qtd in Abraham, 1983, p. 27).
Issues as the number of justices, their qualifications and their duties have been settled by law and tradition rather than being specified in the Constitution (Baum, 1992, p. 13). The Courts composition was addressed in the Judiciary Act of 1789 under Section 1 stating “That the Supreme Court of the United States shall consist of a chief justice and five associate justices. . . “. The number of justices changed several times during the Courts first century. A number of changes were to the number of justices after the Judiciary Act of 1789 in part to accommodate the justices duties in the lower federal courts, in part to serve partisan and policy goals of the president and Congress (Baum, 1992, p. 13).
The first Supreme Court in 1789 consisted of five justices. Congress added a sixth seat in 1790 and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a tenth seat, only to abolish it when a justice died in 1865. In 1867, Congress reduced the seats to seven to limit the opportunity of President Jackson to appoint new members. Congress restored the number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices circuit-riding burden. The number of justices has remained fixed at nine, for over 100 years, making tie votes unlikely unless circumstances prevent a justice from participating in deliberations. There is currently one Chief Justice and eight associate justices in the Supreme Court although Congress does have the authority to change the number of justices sitting on the Supreme Court (Van Dervort, 2000, p. 69).
Qualifications to become a justice although not spelled out immediately became obvious. From the beginning, justices have all been lawyers and most have pursued legal and political careers prior to serving the Court. The attainment of a high position in government or the legal profession is also beneficial as they lend credibility for the consideration. Some justices however chose a different path that began with private practice followed by at some point by elevation to high administrative or judicial positions.
The Constitution requires that members of the Supreme Court be nominated by the president and confirmed by a majority of the Senate. The selection of a Supreme Court justice begins with the creation of a vacancy, when a member dies or steps down. When a vacancy occurs, the president makes a nomination, which must be confirmed by a majority of the voting in the Senate. If the Senate is in recess, the president may make a “recess appointment” that becomes effective immediately. The Senate still possesses the power to vote on the appointees confirmation when it returns from recess. Although it is possible, it is difficult, according to Baum (1992), to reject someone who is already sitting on the Court (p. 31).
Selecting a justice is not as simple as described however. There are numerous individuals and groups that seek to influence the president and the Senate including the American Bar Association and the legal community in general, non-legal interest groups, current members of the Supreme Court and of course, the potential justices themselves. There is a great deal of external pressure that limits the presidents options. The president, however, must recognize the importance of the Court and of its membership. Many believe that most presidents give nominations to the Supreme Court a degree of personal attention that is paralleled only by that given to Cabinet appointments (Baum, 1992, p 39).
The president usually chooses the nominees carefully to minimize the possibility that the justice will veer far from the administrations own agenda after confirmation. He seeks to appoint justices from their own political party, and those who share their political and philosophical views. Selections by the president may be based on competence and ethics, policy preferences, reward to political and personal associates and the pursuit of future political support. More importantly, the individual chosen must be a nominee with strong chances for Senate confirmation. The single most important factor shaping the Courts policies at any given time is clearly the identity of its members. Supreme Court policies are primarily a product of justices preferences and change will come easily through the replacement of one justice with a successor who has different preferences (Baum, 1992, p. 155).
[Footnote 1/18] The Court has no prerogative to hold its own opinion. The Chief Justice’s role is exercised by the Secretary of State or the Associate General Secretary of the Senate. Members of the Senate have the opportunity of considering or weighing the opinions of the Chief Justice and the Secretary of State, along with members of the Senate and an appropriate committee of the Senate and the Judiciary. As indicated, Supreme Court rule is subject to congressional interpretation, and it is of high concern to the Supreme Court on a number of occasions. Justice Alito, for example, once argued that it is of significant priority that a decision be in this Court. Justice White, in a concurring opinion, stated in a separate opinion that, based on the Court’s majority opinion in Oren v. United States that the “same approach” is necessary to protect American democracy, had no occasion to consider the possibility of a President choosing the Chief Justice over a Secretary of State, an individual not at all interested in the appointment of a Justice, or a candidate with a higher profile. Justice Blackmore in a dissenting opinion, during a consideration of the Senate Constitutionality Case of Oren v. United States, noted that the “most serious question we face as a nation is whether we owe a right to public institutions because those institutions have become very powerful and strong and are often at stake in elections in the future” (p. 2). Justice Brennan, in writing while the Court considered the appointment of James Blader, commented: “Many of the decisions in this Court regarding the appointment of Justice Antonin Scalia have become highly salient when we consider Mr. Brennan’s case which has been reviewed by some of the most respected and influential conservative scholars in the country. It is clear that he has an expertise in cases of international law, and he has devoted his energy to the history of international law in a way that is almost indistinguishable from his time in the Senate… [His] understanding of the decision to proceed with the nomination as a nominee for the Supreme Court is perhaps his most effective and persuasive way of conveying the views of American citizens that their decisions are decided and their arguments can be determined as they are, while simultaneously being heard on those decisions” (p. 2). Scalia’s experience is remarkable. The only way to evaluate his judgment is not through the Court’s majority opinions or its recent decisions, but through the oral argument.
[Footnote 1/19] Since Justice Sonia Sotomayor is a member of the Senate, her tenure can be divided into two phases depending on her position as a senator and in office. The first phase usually consists of the Senate committee. During that time, the President can appoint justices that may be selected in a panel of five members, to be followed by a majority opinion in both chambers, and to sit for up to two terms.
The second phase is usually made up of a limited number of Republicans who have their own ideological views. In such cases, the party line of most conservative Republicans can be selected. Thus, when a senator or a Republican appointee in the Senate determines that the party has established a majority of 51 percent or less, the president appoints a nominee. By contrast, when two Republicans elect two of the four nominees before being confirmed, then the Democratic president appoints a Democratic nominee.
The Senate is not the only branch of government in which the President finds himself conflicted, at least as is its role in the public. The House may be a powerful institution with great political influence but no less power. The Supreme Court can be a powerful instrument in this regard, through the Senate. There is a long record of
[Footnote 1/18] The Court has no prerogative to hold its own opinion. The Chief Justice’s role is exercised by the Secretary of State or the Associate General Secretary of the Senate. Members of the Senate have the opportunity of considering or weighing the opinions of the Chief Justice and the Secretary of State, along with members of the Senate and an appropriate committee of the Senate and the Judiciary. As indicated, Supreme Court rule is subject to congressional interpretation, and it is of high concern to the Supreme Court on a number of occasions. Justice Alito, for example, once argued that it is of significant priority that a decision be in this Court. Justice White, in a concurring opinion, stated in a separate opinion that, based on the Court’s majority opinion in Oren v. United States that the “same approach” is necessary to protect American democracy, had no occasion to consider the possibility of a President choosing the Chief Justice over a Secretary of State, an individual not at all interested in the appointment of a Justice, or a candidate with a higher profile. Justice Blackmore in a dissenting opinion, during a consideration of the Senate Constitutionality Case of Oren v. United States, noted that the “most serious question we face as a nation is whether we owe a right to public institutions because those institutions have become very powerful and strong and are often at stake in elections in the future” (p. 2). Justice Brennan, in writing while the Court considered the appointment of James Blader, commented: “Many of the decisions in this Court regarding the appointment of Justice Antonin Scalia have become highly salient when we consider Mr. Brennan’s case which has been reviewed by some of the most respected and influential conservative scholars in the country. It is clear that he has an expertise in cases of international law, and he has devoted his energy to the history of international law in a way that is almost indistinguishable from his time in the Senate… [His] understanding of the decision to proceed with the nomination as a nominee for the Supreme Court is perhaps his most effective and persuasive way of conveying the views of American citizens that their decisions are decided and their arguments can be determined as they are, while simultaneously being heard on those decisions” (p. 2). Scalia’s experience is remarkable. The only way to evaluate his judgment is not through the Court’s majority opinions or its recent decisions, but through the oral argument.
[Footnote 1/19] Since Justice Sonia Sotomayor is a member of the Senate, her tenure can be divided into two phases depending on her position as a senator and in office. The first phase usually consists of the Senate committee. During that time, the President can appoint justices that may be selected in a panel of five members, to be followed by a majority opinion in both chambers, and to sit for up to two terms.
The second phase is usually made up of a limited number of Republicans who have their own ideological views. In such cases, the party line of most conservative Republicans can be selected. Thus, when a senator or a Republican appointee in the Senate determines that the party has established a majority of 51 percent or less, the president appoints a nominee. By contrast, when two Republicans elect two of the four nominees before being confirmed, then the Democratic president appoints a Democratic nominee.
The Senate is not the only branch of government in which the President finds himself conflicted, at least as is its role in the public. The House may be a powerful institution with great political influence but no less power. The Supreme Court can be a powerful instrument in this regard, through the Senate. There is a long record of
In 1925, nominees began