Selection Of A Supreme Court Justice example essay topic

The Supreme Court: The Court of Last ResortbyJennifer F. Long Criminal Justice, CJ 6622 Dr. O'Connor 29 September 2003 At 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, 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 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 Court's 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 (qt d 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 appointee's 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 president's 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 administration's 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). In 1925, nominees began to face questioning by the Senate Judiciary Committee, which holds hearings and then votes its recommendation for Senate action as a whole. The process of appearing before the Judiciary Committee became accepted practice in 1955.

The length or the confirmation is truly dependent on the controversy surrounding the nomination. Not all confirmations are as easy as Harry Blackmun, Antonin Scalia and Sandra Day O'Connor who didn't receive more than one negative vote. The sources of opposition to nominees are many including policy views, political strength of the president in the Senate, interests groups and nominee qualifications (Baum, 1992, p 50). David Souter in 1990 and Clarence Thomas in 1991 nomination aroused opposition. In regards to Thomas, an initial debate over his qualifications gave way to a nationally televised drama over an accusation the alleged sexual harassment of Anita Hill, an Oklahoma University Law School Professor. Thomas was eventually confirmed by a 52 to 48 vote, the smallest margin this century.

In regards to class, race, religion and sex, the Supreme Court's membership has been unrepresentative of the general population. However, with the passage of years, and many 20th century presidents, some believe the make-up of the Court has tended to reflect the dominant threads in the weave of American society. Most justices come from upper status families but the gap is considerably narrower now. Only Protestants served on the Court until 1836 up until the nomination of a Catholic, Roger B. Taney. In 1916 the first Jewish justice, Louis D. Brandeis was selected.

The great Thurgood Marshall became the first African American justice in 1967. The invisible wall that had kept women off the Court was shattered in 1981 when President Reagan nominated Sandra Day O'Connor, a 51-year-old judge on the Arizona Court of Appeals. On November 14, 1980, in anticipation of the possible appointment of a woman, the Justices had decided to drop the 'Mr. ' in front of 'Justice,' which until that time had been used in published opinions and official records for 190 years. She is addressed as 'Justice O'Connor'. The first Italian American, Antonin Scalia came to the Court five years later. Although there are many first clearly with few exceptions, the Court has Court has been composed entirely of white males (web).

According to Baum (1992), the reasoning may have to due with the difficulty in minority groups in pursuing a legal education (p 62). Justices are appointed for life and Article, section 1, of the Constitution further provides that ' [t] he Judges, both of the Supreme and inferior Courts, shall hold their Offices during good behavior, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office. ' A justice may, if so desired, retire at the age of 70 after serving for 10 years as a Federal judge or at age 65 after 15 years of service. They may relinquish their posts voluntarily or are removed by impeachment proceedings.

Under the Constitution, they can be removed from the Court only by first being impeached by a majority voted of the U.S. House of Representatives and then convicted by a two-thirds vote of the Senate. No justice has ever been removed through this process and only one justice has ever been impeached. The jurisdiction of the Supreme Court was granted in Article of the Constitution which can be divided into two parts, appellate and original jurisdiction. Appellate jurisdiction is the most important. It is the power to hear appeals of cases decided in lower federal courts and state supreme courts. Under appellate jurisdiction, the Court may hear cases arising under the Constitution, federal law, or treaty; those in with the United States itself is a party; cases between two or more states; cases between a state and individuals or foreign countries and cases between citizens of the same state if they are disputing ownership of land given by different states.

Roughly two-thirds of the totals are requests for review of decisions of federal appellate or district courts. Cases arising under the Constitution are clearly the most important because the Court issues its most far reaching constitutional decisions and other major rulings involving federal law. The Constitution gives the Supreme Court original jurisdiction over certain specified classes of cases as a trial court and they can be brought directly to the Court. These cases include disputes between two states, disputes between a state and the federal government, cases involving foreign diplomatic personnel and some types of cases brought by a state. Few original jurisdiction cases are filed, usually no more than five a term (web). Congress cannot alter the Courts original jurisdiction, but Article of the Constitution gives it power to control appellate jurisdiction.

The Court must have congressional authorization in order to exercise any of its appellate jurisdictions. However, Congress has authorized the Court to use its full appellate jurisdiction, except on rare occasions. Cases may also be brought to the Supreme Courts attention after decisions by the state supreme courts if they involve claims under federal law or the Constitution. Therefore, an individual accused of violating a state criminal can be tried in a state court and can argue that some constitutional right has been violated.

The case can be brought to the Supreme Court on that constitutional issue but will not rule on the state law surrounding the original case. The Supreme Court has jurisdiction over decisions of the highest state courts when those courts have decided a question of federal law. Therefore, they are known as the court of last resort in all cases involving federal law arising in both state and federal courts (Van Dervort, 2000, p. 69). In Marbury vs. Madison (1803), the Court interpreted its own authority, ruling that the Constitution gave it the power to strike down unconstitutional acts of government.

Chief Justice Marshall argued that where a federal law is inconsistent with the Constitution, the Court must uphold the supremacy of the Constitution by declaring the law unconstitutional and refusing to enforce it. This decision created the power of judicial review. It is both prevailing and controversial as it allows the Supreme Court to have the ultimate word on the meaning of the Constitution and enables them to invalidate both federal and state laws when they conflict with Constitutional interpretation. Judicial review is an essential component in the American system of checks and balances, a system that is intended to safeguard Americans from government abuses of power (web). It places the Supreme Court in a pivotal role in the American political system, making it the referee in disputes among various branches of government, and as the ultimate authority for many of the most important issues in the country. The Court's constitutional decisions, therefore, have affected virtually every area of American life.

The Court does not review all cases. Nearly all cases brought to the Court are under its discretionary jurisdiction so that it can choose whether or not to hear them mandatory cases. Therefore, the Court has the capacity to set its own agenda. Cases come to the court in the form of petitions for writ of certiorari. This writ of certiorari is a legal device by which the Court calls up a case for decision from the Latin certiorari, "we wish to be informed".

Each Justice determines how he or she will vote to accept or reject each certiorari petition (web). Surprisingly, the Court only hears a fraction of 1 percent of cases (Baum, 1992, p 12). In deciding whether to review a case, the Court will generally consider whether the legal question was decided differently by two lower courts and needs resolution by a higher court, whether a lower court decision conflicts with an existing Supreme Court ruling, and whether the issue could have broader social significance beyond the interests of the two parties involved. By its own rule, the Court does not accept a case for decision on its merits unless four or more justices agree that the case should receive that treatment. This is known as the rule of fours (Baum, 1992, p. 76; Champion, 2003, p. 210). Once the Court accepts a petition, it then schedules the case for oral arguments.

While the Court discreetly reviews petitions, it hears each party's oral arguments before the public. Surprisingly, anyone may sit in as an audience member. Cases are heard by open court, when a quorum of two-thirds of the justices is present. Currently, six are required. Questioning can be directed at the lawyers or at another Justice to bolster or sway opinions.

After oral arguments, the justices will vote. Sometimes more than one round of voting will take place because the justices may switch sides during the process, often turning a minority into a majority and vice versa. After the vote, the most senior Justice in the majority assigns the task of writing the majority opinion. Likewise, the most senior justice in the minority also decides who will write the dissenting opinion. In addition, each Justice may write his or her own statements if they wish, but the majority opinion speaks for the final decision of the court. Throughout this process, the clerks are intimately involved, researching past cases that may support a ruling and even to sway opinions in one direction or another.

When the Court declines to hear a case, the decision of the lower court stands as the final word. Observers including news organizations, sometimes make inferences about the justices' view on legal question when they decline to hear a case. Justice Stevens stated in a 1989 case that, "an order denying a petition for writ of certiorari is not ruling on the merits of any question presented by the petition" (qt d in Baum, 1992, p 96). The primary duties of the justices involve participation in the collective decisions of the Court which includes determining which cases to hear, deciding cases and writing and contributing to opinions. Ordinarily, Court decisions are made by the entire Court (nine members).

However, on occasion fewer than nine justices sit on a case. When only eight justices participate in a decision, the Court may divide 4 to 4. A tie vote will then affirm the lower court decision. Ordinarily in this situation individual votes are not announced and no opinions are written.

Justices have found themselves at odds over constitutional decisions as there is a great deal of confusion in some of their decisions. Take for example the issue of search, seizure and the Fourth Amendment. The Supreme Court made a number of conflicting interpretations regarding warrant less searches. The Supreme Court reviewed US vs. Chadwick to determine if the warrant less search of the footlocker violated the Fourth Amendment after Chadwick's footlocker had be searched while in the truck of an automobile.

The Supreme Court decided in a 7-2 ruling that the evidence uncovered must be suppressed because opening the footlocker violated the suspects' Fourth Amendment rights as law enforcement had ample opportunity to obtain a warrant. No recognized exception excuses the failure of law enforcement to obtain a warrant. In US vs. Ross, however, the Court ruled that a warrant less search of an automobile could include a search of a container or package found inside the car when such a search was supported by probable cause. It held that since the search was done with probable cause and extended into the realm of which a magistrate issuing a warrant would have approved, but not actually obtained, the officers did not violate the Fourth Amendment. In California vs. Acevedo the Supreme Court, reexamined the law applicable regarding a closed container in an automobile.

The legal question in this case was whether the Fourth Amendment requires police to obtain a warrant in order to search a container or package in a car when there is probable cause to support a search of the entire vehicle. In a 6-3 decision, Supreme Court held that a warrant is not required to search a container, package, or compartment within a vehicle provided that there is probable cause to believe that the object is in the vehicle. This allows for the warrant less search of the entire automobile as well as containers found with it. Obviously, the line between probable cause to search a vehicle and probable cause to search a package / container in a vehicle is extremely blurred. Any line however that makes exception to the warrant requirement will be blurred but erasing and redrawing lines does not create a clearer boundary for law enforcement, lower courts or defendants. The Court in this case set new precedent; however, it did not overrule Chadwick since Chadwick was not treated as an automobile exception (Zalman, 2002, p 240).

The Court has always played an important part of American life although it has been shrouded in considerable mystery. Since the early 19th century the Supreme Court has played a central role in resolving many of the country's most difficult problems while simultaneously interpreting the Constitution. In Brown vs. Board of Education (1954), the Court ordered the desegregation of the southern school system which began the long process of desegregation. The Court expanded the rights of criminal defendants in state trials in Gideon vs. Wainwright, police search and seizure practices in Mapp vs. Ohio (1961) and questioning subjects in Miranda vs. Arizona (1966).

The Court addressed abortion in Roe vs. Wade in 1963. More recently, the Supreme Court upheld in June (2003) the right of universities to consider race in admissions procedures in order to achieve a diverse student body. The Court's decisions old and new have often stirred controversy, and those who disagree with its rulings have sometimes called its authority into question. Still, through most of its history the Supreme Court has stood as one of the most respected and trusted institutions in the United States. It is a political institution, a legal institution and a policy maker. Its members are crucial in affecting the interpretations of the Constitution and important amendments relevant to citizens (Champion, 2003, p. 203).

Bibliography

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The Supreme Court. (4th ed). Washington, DC: Congressional Quarterly Inc. Champion, D. (2003).
Administration of Criminal Justice: Structure, Function and Process. New Jersey: Prentice-Hall. Lieberman, J. Supreme Court of the United States. Microsoft (R) Encarta (R) Online Encyclopedia 2003.
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