AP® U.S. GOVERNMENT AND POLITICS
Supreme Court FAQ
AP® U.S. GOVERNMENT AND POLITICS
Supreme Court FAQ
John G. Roberts
Chief Justice
Year Appointed: 2005
Appointed by: George W. Bush
Clarence Thomas
Associate Justice
Year Appointed: 1991
Appointed by: George H. W. Bush
Samuel Alito
Associate Justice
Year Appointed: 2006
Appointed by: George W. Bush
Sonia Sotomayor
Associate Justice
Year Appointed: 2009
Appointed by: Barack Obama
Elena Kagan
Associate Justice
Year Appointed: 2010
Appointed by: Barack Obama
Neil Gorsuch
Associate Justice
Year Appointed: 2017
Appointed by: Donald Trump
Brett Kavanaugh
Associate Justice
Year Appointed: 2018
Appointed by: Donald Trump
Amy Coney Barrett
Associate Justice
Year Appointed: 2020
Appointed by: Donald Trump
Ketanji Brown Jackson
Associate Justice
Year Appointed: 2022
Appointed by: Joe Biden
Justices are appointed by the president and confirmed by the Senate.
Justices do not have a term limit and typically serve until their retirement or death. The average tenure for Supreme Court justices is ~16 years.
Yes. All federal judges hold office during "good behavior" and can be removed through impeachment. In the Court's history, only one (1) Supreme Court justice has been impeached: Samuel Chase. Chase was impeached for allowing his political leanings to influence his rulings but was acquitted by the Senate and served until his death six years later.
In the history of the United States, only eight (8) federal judges have been removed by impeachment.
1. Judicial Experience: all but one (1) justice appointed since 1975 had served as an appellate judge.
2. Party Affiliation: 90% of appointees have been members of the president's party.
3. Constitutional Views: similar to party affiliation in that a president may appoint a justice based on certain strongly-held political positions (gun rights, abortion, etc.)
4. Demographic Factors: race and gender have become important factors considered in appointing recent justices.
The Senate's 100 voting members each cast a vote. Until the 1920s, Senate deliberation on justices were secret. Now, however, nominees testify before the Senate Judiciary Committee in public hearings (as do groups that support or oppose the nominee). Since 1982, when President Reagan nominated Sandra Day O'Connor to the Court, these hearings have been televised.
The United States has a three-tiered federal judicial system to try cases and to hear appeals:
1. The Supreme Court
2. Federal Appeals Courts
3. Federal District Courts
Federal district courts are the primary trial courts of the federal judicial system with a single judge presiding over trials in civil or criminal cases. 94 federal district courts serve the fifty states, the District of Columbia, and various U.S. territories. Every state has at least one district court, with more populous states divided into multiple district courts (ex: California, New York and Texas each have four district courts).
The thirteen courts of appeals serve as the first-level appellate courts of the federal judicial system (the second, higher level is the Supreme Court). They hear appeals from district courts. The courts of appeals typically hear cases as three-judge panels which are randomly chosen for the case.
Most courts of appeals are organized into regional "circuits" made up of three or more states.
The Supreme Court is the highest judiciary in the United States. The Court's rulings on federal law are legally binding on all lower courts. The Supreme Court originally consisted of six justices, but Congress changed the size of the Court several times (sometimes for political purposes) before finally establishing the number of justices at nine (9) in 1869.
Article III of the Constitution established the United States Supreme Court and gave Congress the authority to create lower courts.
Each year, the Supreme Court receives over 7,000 petitions for review but decides less than ~2% of the cases appealed to it with full opinions.
The Supreme Court has two types of jurisdiction:
1. Original Jurisdiction: The Court's original jurisdiction was to oversee cases in which the United States is a party involved or cases which involve foreign diplomats. Ex: challenging a federal law or an action by the federal government. Currently, the Supreme Court has exclusive jurisdiction over legal disputes between two states (which commonly deal with boundaries or rights to resources).
2. Appellate Jurisdiction: The Supreme Court hears most of its cases on appeal either from one of the fifty state courts or from federal courts. In these cases, the Court operates as the "court of last resort." Its decisions are final in that there is no court to which one can appeal to reverse them. Ex: a state court makes a ruling which is appealed. The Supreme Court can decide to settle the case and the appeal.
1. Law clerks screen petitions and prepare memos for justices to consider. Each justice has several law clerks (distinguished law school graduates selected after they have already served a year's clerkship for another federal judge). These clerks screen petitions (cases appealed to the Supreme Court) and prepare memos summarizing the materials.
2. Justices prepare a "discuss list". With the help of their clerks' memos, the chief justice prepares a "discuss list" of the petitions he/she believes deserves collective consideration. Other justices can then add cases to the list. 70% of all petitions are rejected in this manner.
3. Collective Consideration. Together during the three- or four-day conference before the beginning of the Court's term in October and at weekly conferences during the term, justices review the discuss list and decide which cases will make it to the Court's docket. The justices do not publish or explain their votes to grant or deny review for particular cases.
While deciding which cases will be heard by the Court during its term, no case is accepted for review unless at least four justices vote to hear it. This is called the rule of four. This is done to prevent a majority from controlling the cases on the Court's docket.
In some cases, certain justices might favor review if they believe that a majority of the Court will support their constitutional position. However, if they expect to be in the minority on the Court, they might oppose review rather than risk the creation of unfavorable precedent. This practice is referred to as defensive denial of certiorari.
Some cases, because of the momentous political or legal issues they raise, seem to demand Supreme Court review. Others require that the Supreme Court rule so that it can establish uniformity and consistency in federal law. However, there are some external influences that might prevent the Court from hearing cases:
The Court may seek to safeguard its influence by avoiding unproductive involvement in political disputes.
The Court may seek to avoid unnecessarily inflaming public opinion by limiting the number of controversial issues it addresses at one time.
The Court may consider public reaction in choosing cases in which to announce important rulings.
If the Court seeks to decide cases of national importance, then the nation's political concerns certainly helps determine the Court's docket. Examples:
Pre Civil War: Cases involving slavery and the power struggle between federal and state governments
Post Civil War: State laws restricting voting access for black Americans, Jim Crow/black codes
Industrialization: Workers' rights, consumer rights, legal protections for businesses, environmental concerns
Great Depression and the New Deal: Upholding authority of federal government to expand/create programs
Civil Rights Movement: Civil rights, rights of private businesses vs. individuals
The basic steps to the process are:
1. Informing the Court: Justices inform themselves about the facts and legal issues in the case and about the more general consequences that can be expected from a ruling.
2. Persuading the Court (Oral Arguments): Justices hear oral arguments from both parties.
3. Decision-Making (Closed Conferences and Opinion Writing): Justices discuss the case in closed conference and reach a tentative decision. They then write opinions to clarify and develop the basis for their ruling, and attempt to reconcile differences.
1. Legal Briefs: explanations from both parties involved in the case.
2. Amicus Curiae Briefs: explanations from parties outside of the case.
3. Oral Hearings: verbal explanations and questions/answers from both parties involved in the case directly to the Court's justices.
A legal brief is a document that attempts to persuade a court to rule in favor of one's client or position. It refers to the facts and legal materials (precedents, statutes, and constitutional provisions) with the ultimate goal of a convincing a judge to provide a favorably ruling.
Amicus curiae translates literally to "friend of the court". Amicus briefs are legal briefs filed by groups (outside those involved in the case/non-litigants) that are interested primarily in the general constitutional issue the case raises. Some organizations file amicus briefs out of concern for the effects the Court's decision might have on them or on their members. For other organizations, the principal concern is ideological; they wish to see the court rule in a particular way.
In oral argument, the attorneys for each parties have their last opportunity to influence the Court's decision and clarify the written arguments presented in the briefs. Through their questions, the justices test the soundness of the opposing legal positions, and weaknesses in an argument or lack of preparation by attorneys soon become apparent.
As Justice John Marshall Harlan observed, oral argument "may in many cases make the difference between winning and losing, no matter how good the briefs are."
When the Court's docket was less crowded, lawyers could spend several days arguing a case before the justices. Nowadays, oral presentations are usually limited to a half hour for each party, although in particularly important cases more time can be allotted. Ex: Bush v. Gore (45 minutes each) and National Federation of Independent Businesses v. Sebelius (3 hours each).
On Wednesdays and Fridays during its annual term (early October to late June), the Court meets in conference. Only the justices themselves are present (without law clerks or other Court staff).
Deliberations begin only after the justices shake hands, a ritual meant to symbolize that the inevitable disagreements are legal, not personal.
The chief justice initiates discussion by indicating his/her views on the case at hand and his/her vote. The associate justices, in descending order of seniority (most senior to least based on years as a justice on the Court), similarly present their views and votes, and the tallying of votes produces a tentative decision.
For the most part, justices merely announce their conclusions rather than seek to persuade their fellow justices.
If the chief justice is in the majority: he/she determines who will write the opinion of the Court (majority opinion), either assigning it to another member of the majority or writing it him/herself.
If the chief justice is in the minority: the most senior justice aligned with the majority assigns the opinion of the Court.
The other justices are free to express their views in concurring (agree with majority) or dissenting opinions (disagrees with the majority), and in recent decades the number of separate opinions has risen dramatically.
Note: Information is sourced from American Constitutional Law 9th Ed Vol. II (Rossum & Tarr) for educational purposes.