United States Supreme Court

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Supreme Court, United States

Supreme Court, United States, highest court of the United States, established by Article 3 of the Constitution of the United States.

Scope and Jurisdiction

Section 1 of Article 3 of the Constitution provides for vesting the judicial power of the United States in one supreme court and in such inferior courts as Congress establishes. Section 2 defines the scope of U.S. judicial power and establishes the jurisdiction of the Supreme Court. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States; to cases concerning foreign diplomats and admiralty practice; and to diversity cases (those between citizens of different states) and cases in which the United States or a state is a party (however, the Eleventh Amendment, adopted in 1798, forbids federal cognizance of cases brought against a state by citizens of another state or by citizens of a foreign state).

The cases in which the Supreme Court has original jurisdiction—i.e., where another court need not first consider the controversy—are those in which diplomats or a state is a party; even here, it has been held, inferior courts may enjoy concomitant jurisdiction. In all other federal cases the Supreme Court exercises appellate jurisdiction, but subject to limitations and regulations made by Congress.


The court's annual term begins in October. Five justices constitute a quorum to hear a case, and decision is rendered by majority vote. In the event of a tie, the previous judgment is affirmed. Under the Judiciary Law as amended in 1934, cases are usually brought to the court by appeal or by writ of certiorari. The appeal procedure is used when the highest state court has declared that a U.S. statute is unconstitutional or that a state statute does not violate the U.S. Constitution, laws, or treaties. If a lower federal court rules that a U.S. statute is unconstitutional, the government may prosecute an immediate appeal. Certiorari is granted at the court's discretion, with most applications refused. It may be used to review the constitutional decisions of state courts of last resort and federal decisions on any important matter, especially when the inferior courts are in disagreement.


The Supreme Court has two fundamental functions. On the one hand, it must interpret and expound all congressional enactments brought before it in proper cases; in this respect its role parallels that of the state courts of final resort in making the decisive interpretation of state law. On the other hand, the Supreme Court has power (superseding that of all other courts) to examine federal and state statutes and executive actions to determine whether they conform to the U.S. Constitution. When the court rules against the constitutionality of a statute or an executive action, its decision can be overcome only if the Constitution is amended or if the court later overrules itself or modifies its previous opinion. The decisions are not confined to the specific cases, but rather are intended to guide legislatures and executive authority; thereby they mold the development of law. Thus, in the U.S. governmental system the Supreme Court potentially wields the highest power.

The Supreme Court, however, has found many constitutional limitations on its powers, and has voluntarily adopted others so as not to interfere unduly with the other branches of government or with the states. Though there are some notable exceptions, the court has a standing policy of eschewing political disputes, i.e., issues that are considered to be policy matters of legislative or executive authorities. In 1962 the court, over protests that it was entering a “political thicket,” ruled in Baker v. Carr that the legislatures of several states must correct imbalances in representation between rural and urban areas. The court rarely attempts to infringe upon the power of the President over foreign affairs. Self-imposed restraints, observed only intermittently, include consideration of a constitutional issue only if the case cannot be considered on other grounds, and the formulation of constitutional decisions in the narrowest terms.


Members of the court are appointed by the President with the advice and consent of the Senate. Like all federal judges, they retain their office indefinitely during “good behavior” (only in one instance—that of Justice Samuel Chase in 1805—were impeachment proceedings ever brought against a member of the Supreme Court).

The size of the Supreme Court is not prescribed by the Constitution; it is set by statute. The court began in 1789 with six members and was increased to seven in 1807, to nine in 1837, and to ten in 1863. In 1866 the membership was reduced to eight to prevent President Andrew Johnson from filling any vacancies. Since 1869, the court has comprised nine members.

By 2007 a total of 110 Justices, 108 men and 2 women, had sat on the bench. Five served both as associate justice and as chief justice; they were John Rutledge (appointed chief justice in 1795 but never confirmed by the Senate), Edward D. White (appointed to the court in 1894 and chief justice from 1910 to 1921), Charles Evans Hughes (an associate justice from 1910 to 1916, he served as chief justice from 1930 to 1941), Harlan F. Stone (appointed to the court in 1925 and chief justice from 1941 to 1946), and William H. Rehnquist (appointed associate justice in 1971 and chief justice from 1986 to 2005). See the table entitled Supreme Court Justices for a chronological list of all chief justices and associate justices.


Early Years

The history of the Supreme Court reflects the development of the U.S. economy, the alteration of political views, and the evolution of the federal structure. In its earliest years, the court had little business to transact. Much of the justices' time was consumed in appearing on the federal courts of appeal in the judicial circuits assigned to them. This obligation of circuit riding was later to interfere seriously with the performance of the court's more important business. For the most part the full bench—sitting first in New York City, then in Philadelphia, finally in Washington—was a court of last resort in admiralty cases and in cases arising out of diversity of citizenship. The court somewhat later decided (in 1842 in Swift v. Tyson) that in diversity suits it would follow not state law but a presumed federal common law.

The Court under Marshall

The status of the Supreme Court was somewhat uncertain until the tenure (1801–35) of John Marshall, the “Great Chief Justice.” Marshall, a strong Federalist, in Marbury v. Madison established the principle of judicial review, i.e., the right of all courts to refuse the enforcement of unconstitutional enactments of Congress. The same power in regard to state laws was asserted in the opinion of Martin v. Hunter's Lessee (1816), delivered by Justice Joseph Story.

In other opinions, Marshall further strengthened the Federalist position as against those who espoused states' rights. This is seen notably in McCulloch v. Maryland (1819), which, by holding the creation of the second National Bank a legitimate power of Congress, gave judicial sanction to Alexander Hamilton's broad interpretation of the Constitution and extended the powers of the federal government over matters of decisive economic importance; and in Gibbons v. Ogden (1824), which confirmed the power of Congress to regulate commerce. Also of importance was Marshall's decision in the Dartmouth College Case (1819), which protected state-granted charters from impairment by state legislatures.

The Court under Taney

Under Marshall's successor, Roger B. Taney, the court recognized to some extent the claims of state regulatory authority through police power. However, in the Dred Scott Case, Taney made what many persons considered an unwarranted limitation of federal authority in forbidding Congress to prohibit slavery in the territories. So violent was the reaction of antislavery forces to the decision that in the North the prestige of the court declined greatly. The low point in the judiciary's estate came during the Civil War when Taney's challenge of President Lincoln's power to suspend habeas corpus was ignored by the President and denounced by the Northern press (see Merryman, ex parte).

From the Civil War to 1937

The end of the Civil War to 1937 encompasses the second great period in the history of the court. After the adoption (1868) of the Fourteenth Amendment, the character of litigation before the court was altered, and there were many cases alleging that state legislation took liberty or property without due process of law, or denied equal protection of the laws. In the late 19th cent., the flood of litigation arising from a wide variety of causes was delaying the disposition of cases up to three years. Relief was imperative, and finally, in 1891, Congress created the circuit courts of appeals to give a final hearing to most appeals and excused the justices from riding circuit (however, each justice still heads one or more circuits).

In the early 20th cent., the court appeared to be highly conservative in its views. It showed in general a rigid adherence to stare decisis (the rule that precedents are to be followed), a tendency to prevent the states from adopting laws that restricted business in its employment practices and other activities, and little disposition to restrain the states from restricting civil liberties, as in the Plessy v. Ferguson case (1896), which upheld the right of states to enforce segregationist Jim Crow legislation in many Southern states. In the Insular Cases (1901), arising out of questions concerning the status of peoples in the territories acquired as a result of the Spanish-American War, the court asserted that the civil rights guaranteed by the Constitution did not automatically apply to the people of an annexed territory, i.e., the Constitution did not follow the flag.

In one notable case, Muller v. Oregon (1908), the court departed from its conservative stand to uphold a state law limiting the maximum working hours of women. The case was unique in that Louis D. Brandeis, counsel for the state, and later to become a distinguished member of the court, eschewed the traditional legal arguments and showed with overwhelming evidence from physicians, factory inspectors, and social workers that the number of hours women worked affected their health and morale. The modern concern with civil liberties began in the aftermath of World War I, as the court, led by Oliver Wendell Holmes and Brandeis, began to expand the constitutional protections to free speech.

The Roosevelt Years

A third great period of constitutional history began after President Franklin Delano Roosevelt came to office and Congress passed landmark economic legislation. Much of the economic legislation of the New Deal was attacked on various constitutional grounds, e.g., that the laws were unwarranted delegations of legislative power to the President and interfered with the exclusive power of the states over intrastate commerce. From 1935 to 1937, the court struck down such major pieces of New Deal legislation as the National Industrial Recovery Act (in the Schechter Poultry Case), the Agricultural Adjustment Act, and the Bituminous Coal Act. Some of the laws were condemned by five-to-four decisions.

Unalterably in the conservative camp were Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter. The liberals (and supporters for the most part of New Deal legislation) were Benjamin N. Cardozo, Brandeis, and Harlan F. Stone. In the center were Chief Justice Hughes and Owen J. Roberts. Roosevelt, who had not appointed a single justice, was determined to change the composition of the court and proposed (Feb., 1937) a measure designed to displace the “nine old men” and to infuse the bench with “new blood” of his choosing.

His plan—which even his opponents conceded was probably constitutional—was to provide retirement at full pay for all members of the court over 70; if a justice refused to retire, an “assistant” with full voting rights was to be appointed. In no case might there be more than 15 justices. The majority in Congress, which characterized the scheme as “packing the court,” prevented it from ever coming up for a vote, and it was abandoned in July.

In April, however, Hughes and Roberts joined the liberal group, thus giving the New Deal a precarious majority of one. By five-to-four votes the National Labor Relations Act and the Social Security Act were upheld. The majority justified these and other decisions by pointing out that the scope of federal legislation had to expand because the growing interdependence of the country made local economic legislation of little value. The court also enunciated the novel view that in acting under the “general welfare” clause of Article 1, Section 8, of the Constitution, Congress was not limited to carrying out its express powers as listed in Article 1 but might pursue a wider range of objectives. Congress was thus given a vast new range of legislative power free of Supreme Court censure.

In 1938, the court took another revolutionary step in overruling Swift v. Tyson. The doctrine of a federal common law was repudiated, and in handling diversity suits the federal courts were directed to use state law. While in this case the Supreme Court limited the scope of federal activity, it took certain steps in the opposite direction. In the conflict of laws (juristic relations between states) it announced many new principles, and it forbade even limited state taxation of federal facilities but offered Congress fairly wide scope to tax various state-supported activities.

The court of the 1940s, with seven appointments by Roosevelt, was not more unified than its Depression-era predecessor. There was less public concern, however, since the court did not invalidate major legislation, while the diverse views of its members on technical subjects—antitrust and patent law, conflict of laws, taxation—mainly concerned lawyers and business. On the contrary, the percentage of dissents and of special opinions was greater than at any previous time. A notable blot on the court's record during World War II was its decision in Korematsu v. United States (1944), which upheld the constitutionality of wartime relocation and internment of Japanese-Americans; that decision was finally overturned by the court in 2018, in a decision in which the court upheld the final version of President Trump's travel restrictions on citizens of several predominantly Muslim nations.

The 1950s and 1960s: Civil Liberties and Criminal Procedure

In the 1950s, the court found itself more and more concerned with the constitutional rights of the individual. Freedom of speech and other civil liberty issues were repeatedly brought before the court during this period of concern over internal subversion. Similarly, Congressional interrogation practices, state sedition laws, and other questionable methods used by the authorities in uncovering Communists in and out of government came under severe scrutiny near the end of the decade. The court's willingness to hold the constitutional guarantees of free speech and due process as above the alleged needs of internal security brought strong criticism from conservative jurists and led to attempts in Congress to curb the court's jurisdiction.

By the late 1950s, a fairly clear division on civil liberties had been established within the court. One wing, often called the judicial pacifists, sided with Felix Frankfurter, who argued that legislation and inquiries concerning internal security should be given the benefit of doubt despite infringements of personal liberty. The judicial activist wing, led by Justices Hugo L. Black and William O. Douglas, felt that the freedoms guaranteed by the Bill of Rights are absolute and should be considered beyond the power of Congress or the executive to modify. However, in civil-rights litigation, the court closed ranks in 1954, under Chief Justice Earl Warren, to order the desegregation of Southern public schools by a unanimous vote (see integration; Brown v. Board of Education of Topeka, Kans.).

In the 1960s, the court expanded the protection given individuals accused of crimes, especially in the areas of search and seizures (Mapp v. Ohio), confessions (Miranda v. Arizona), and the right to an attorney (Gideon v. Wainwright). In 1967, President Lyndon B. Johnson appointed the first African American, Thurgood Marshall, to the court.

In his first term in office, President Richard M. Nixon was able to significantly affect the outlook of the court by appointing a chief justice, Warren Burger, and three associate justices, Harry Blackmun, Lewis Powell, and William Rehnquist. Byron White, appointed by John F. Kennedy, often voted with the four to cut back the scope of the Warren court on criminal and other holdings. Emphasizing property rights and freedom from government interference, the court held that a private club with a state liquor license could refuse to serve guests because of their race and that a private shopping center could selectively ban political pickets.

In other areas, however, the Burger court proved surprisingly liberal. The death penalty (see capital punishment) was declared unconstitutional in Furman v. Georgia (1972) on the grounds that it constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. This was later overturned in Gregg v. Georgia (1976). In Nixon v. United States (1974), a unanimous court, including three Nixon appointees, ordered President Nixon to produce tape recordings relevant to the Watergate affair, a decision that precipitated his resignation three weeks later.

The court's most controversial decision of the Burger years was the declaration of women's rights to abortion in Roe v. Wade (1973). Critics were opposed to both its results—invalidation of state statutes prohibiting abortion—and the grounds for the decision, which they believed had usurped the prerogatives of legislatures in voiding state laws and asserted an unenumerated right not laid out in the Constitution. This argument found favor in the 1980s, under the administrations of Presidents Ronald Reagan and George H. W. Bush, who were committed to overturning the 1973 decision, and had the opportunity to make five appointments to the court.

The Current Court

With the emergence of a working conservative majority, particularly under the leadership of William Rehnquist (1986–2005), many of the Warren and Burger court precedents in the areas of criminal procedure and civil liberties were scaled back. Though the court approved of restrictions on the right to abortion, it also, by a narrow majority, continued to uphold the underlying principle of Roe v. Wade. The continuing controversy over the abortion ruling and other civil liberties cases placed the court in the center of a national political debate, underscored by the bitter Senate hearings on the unsuccessful nomination of Robert Bork and the contention that surrounded the elevation of Clarence Thomas to the court. From the mid-1990s to the mid-2000s the other members of the court were John Paul Stevens, appointed by President Ford; Sandra Day O'Connor, the first female Justice, Antonin Scalia, and Anthony Kennedy, all Reagan appointees; David Souter, appointed by President George H. W. Bush (who also appointed Thomas); and Ruth Bader Ginsburg and Stephen Breyer, both Clinton appointees. At the beginning of the 21st cent., the court's center was far to the right of the center during the Warren and even the Burger years. On the other hand, Justices Souter, Ginsburg, and others were felt to have acted as a brake on conservative judicial activism. A significant subsequent set of decisions (2004, 2005) in which the justices found that only juries can make the findings of fact that affect a defendant's sentence was notable for the shifting alliances among the members that determined the outcome of the cases.

The Rehnquist court, despite its sometimes activist approach, also espoused the doctrines of judicial restraint, restrictions on federal power, and deference to the states. These positions were essentially abandoned by the court in Dec., 2000, when, after Al Gore had sought and won a court-ordered recount from the Florida supreme court, the U.S. Supreme Court split 5–4 along ideological lines and ordered an end to the recount (because a single standard for conducting the recounts had not been established by the Florida court). Many observers felt that the court had tarnished its reputation with its decision, and some felt that it was a blatantly political ruling in favor of the Republican candidate, George W. Bush.

In 2005, with the retirement of Justice O'Connor and the death of Chief Justice Rehnquist, Bush appointed John G. Roberts, Jr., to succeed Rehnquist and Samuel A. Alito, Jr., to replace O'Connor. These appointments, especially that of Alito, who was confirmed in 2006, were generally regarded as increasing the conservatism of the Court, as shown by its upholding (2007) of a federal law banning the late-term abortion procedure abortion opponents have called “partial-birth” abortion and its decision (2007) that strongly limited the degree to which school districts could use race in order to avoid resegregation. The Roberts court also been the most pro-business court in its decisions since World War II, though many of those decisions have been decided narrowly.

A notable ruling (2006) of the new Court determined that the president could not use military commissions that had not been authorized by Congress to try foreign terror suspects. The judgment appeared to undermine the Bush administration's long-standing but legally untested assertion that the president's constitutional powers to defend the United States were not subject to congressional legislation. The 5–3 decision overturned an appeals court ruling that had been decided in part by the new chief justice, who did not participate in the ruling.

President Barack Obama appointed Sonia Sotomayor to the Court in 2009; regarded as a liberal, she succeeded Justice Souter and became the Court's first Hispanic-American member. In 2010 Elena Kagan was named to the Court, succeeding the retiring Justice Stevens. Subsequent notable and controversial decisions include the Court's narrowly upholding, in large part, of the Affordable Care Act (known as Obamacare) in 2012, and two 5–4 decisions, written (2013, 2015) by Justice Kennedy, that extended constitutional recognition and protection to same-sex marriage. Kennedy was also a crucial participant in a 2016 decision that overturned a Texas law for placing medically unjustifiable restrictions on abortion providers.

The death of conservative Justice Scalia in 2016 brought political tensions over the court's membership to a new height when the Republican-controlled Senate refused to consider President Obama's nomination of centrist Merrick Garland. The open vacancy was ultimately filled by President Trump a year later, when he appointed conservative Neil Gorsuch. The subsequent appointment (2018) of conservative Brett Kavanaugh to succeed Justice Kennedy moved the court further to the right and effectively made Chief Justice Roberts the court's swing vote. Despite the court's more conservative composition, it ruled 6–3 in 2020 that the prohibition against discrimination with respect to sex in the Civil Rights Act of 1964 applied to gay and transgender workers; Justice Gorsuch wrote the opinion. The death of Justice Ginsburg in 2020, and the quick appointment by President Trump of Amy C. Barrett, a conservative in the mold of Scalia, gave the court a solid conservative majority that seemed likely to be unassailable for years to come.


Modern scholarly studies include A. F. Bartee, Cases Lost, Causes Won: The Supreme Court and the Judicial Process (1983); V. Blasi, The Burger Court (1983); J. Agresto, The Supreme Court and Constitutional Democracy (1984); D. P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985); G. J. Lankevich and H. B. Furer, ed., The Supreme Court in American Life (1986); D. M. O'Brien, Storm Center: The Supreme Court in American Politics (1986); A. Cox, The Court and the Constitution (1987); W. Rehnquist, The Supreme Court (1987); W. Lasser, The Limits of Judicial Power (1988); G. E. White, The American Judicial Tradition (rev. ed. 1988); J. F. Simon, The Center Holds: The Power Struggle inside the Rehnquist Court (1995) and F.D.R. and Chief Justice Hughes (2012); J. Toobin, The Nine (2007) and The Oath: The Obama White House and the Supreme Court (2012); B. Solomon, FDR v. The Constitution (2009); M. E. K. Hall, The Nature of Supreme Court Power (2010); J. Shesol, Supreme Power: Franklin Roosevelt v. the Supreme Court (2010); K. J. McMahon, Nixon's Court (2011); M. Tushnet, In the Balance: Law and Politics on the Roberts Court (2013); L. Tribe and J. Matz, Uncertain Justice: The Roberts Court and the Constitution (2014).

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