Early beginnings

John Marshall, chief justice from 1801 to 1835

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 procedure.^[13] As the court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two).^[14] However, Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789.^[15] The court lacked a home of its own and had little prestige,^[16] a situation not helped by the era's highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.^[17]

The court's power and prestige grew substantially during the Marshall Court (1801–1835).^[18] Under Marshall, the court established the power of judicial review over acts of Congress,^[19] including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)^[20][21] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee, McCulloch v. Maryland, and Gibbons v. Ogden.^{[22][23][24][25]}

The Marshall Court also ended the practice of each justice issuing his opinion seriatim,^[26] a remnant of British tradition,^[27] and instead issuing a single majority opinion.^[26] Also during Marshall's tenure, although beyond the court's control, the impeachment and acquittal of Justice Samuel Chase from 1804 to 1805 helped cement the principle of judicial independence.^[28][29]

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.^[30] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,^[31] which helped precipitate the American Civil War.^[32] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution^[25] and developed the doctrine of substantive due process (Lochner v. New York;^[33] Adair v. United States).^[34] It was in 1869 that the size of the court last changed, being set at nine.

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),^[35] 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),^[36] and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).^[37]

New Deal era

The U.S. Supreme Court Building, current home of the Supreme Court, which opened in 1935

The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies.

During the Hughes, Stone, and Vinson courts (1930–1953), the court gained its own accommodation in 1935^[38] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin D. Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby, and United States v. Butler).^[39][40][41] During World War II, the court continued to favor government power, upholding the internment of Japanese Americans (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.

The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties.^[42] It held that segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment (Brown v. Board of Education, Bolling v. Sharpe, and Green v. County School Bd.)^[43] and that legislative districts must be roughly equal in population (Reynolds v. Sims). It recognized a general right to privacy (Griswold v. Connecticut),^[44] limited the role of religion in public school, most prominently Engel v. Vitale and Abington School District v. Schempp,^[45][46] 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),^[47][48] and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona).^[49] At the same time, the court limited defamation suits by public figures (New York Times Co. v. Sullivan) and supplied the government with an unbroken run of antitrust victories.^[50]

Burger, Rehnquist, and Roberts

Justices of the Supreme Court with President George W. Bush (center-right) in October 2005. The justices (left to right) are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer

The Burger Court (1969–1986) saw a conservative shift.^[51] It also expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade)^[52] but divided deeply on affirmative action (Regents of the University of California v. Bakke)^[53] and campaign finance regulation (Buckley v. Valeo).^[54] It also wavered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),^[55] but later that the death penalty itself was not unconstitutional (Gregg v. Georgia).^[55][56][57]

The Rehnquist Court (1986–2005) was known for its revival of judicial enforcement of federalism,^[58] 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).^{[59][60][61][62][63]} 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)^[64] 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).^[65] The court's decision in Bush v. Gore, which ended the electoral recount during the 2000 United States presidential election, was especially controversial.^[66][67]

The Roberts Court (2005–present) is regarded as more conservative than the Rehnquist Court.^{[68][69][70][71]} Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Twombly–Iqbal), voting rights and federal preclearance (Shelby County–Brnovich), abortion (Gonzales v. Carhart and Dobbs v. Jackson Women's Health Organization),^[72] climate change (Massachusetts v. EPA), same-sex marriage (United States v. Windsor and Obergefell v. Hodges), and the Bill of Rights, such as in Citizens United v. Federal Election Commission and Americans for Prosperity Foundation v. Bonta (First Amendment),^[73] Heller–McDonald–Bruen (Second Amendment),^[74] and Baze v. Rees (Eighth Amendment).^[75][76]

Nomination, confirmation, and appointment

John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice

Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, such as age, citizenship, residence or prior judicial experience, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.^[77][78][79]

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955.^[80] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.

Although Senate rules do not necessarily allow a negative or tied vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson's nomination of sitting associate justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, only Democratic senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority's prior refusal to take up President Barack Obama's nomination of Merrick Garland to fill the vacancy.^[81] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.^[82]

Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred with President George W. Bush's nomination of Harriet Miers in 2005. The Senate may also fail to act on a nomination, which expires at the end of the session. President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate failed to act on the March 2016 nomination of Merrick Garland, as the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump.^[83]

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 appointee can take office.^[84] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.^[85] After receiving their commission, the appointee must then take the two prescribed oaths before assuming their official duties.^[86] The importance of the oath taking is underscored by the case of Edwin M. Stanton. Although confirmed by the Senate on December 20, 1869, and duly commissioned as an associate justice by President Ulysses S. Grant, Stanton died on December 24, prior to taking the prescribed oaths. He is not, therefore, considered to have been a member of the court.^[87][88]

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, the process has taken much longer and some believe this is because Congress sees justices as playing a more political role than in the past.^[89] According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (2.3 months).^[90][91]

Tenure

The interior of the United States Supreme Court

Article Three, Section 1 of the Constitution provides that justices "shall hold their offices during good behavior", which is understood to mean that they may serve for the remainder of their lives, until death; furthermore, the phrase is generally interpreted to mean that the only way justices can be removed from office is by Congress via the impeachment process. The Framers of the Constitution chose good behavior tenure to limit the power to remove justices and to ensure judicial independence.^{[98][99][100]} No constitutional mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.^[101] The only justice ever to be impeached was Samuel Chase, in 1804. The House of Representatives adopted eight articles of impeachment against him; however, he was acquitted by the Senate, and remained in office until his death in 1811.^[102] No subsequent effort to impeach a sitting justice has progressed beyond referral to the Judiciary Committee. (For example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969.)

Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes they arise in quick succession, as in September 1971, when Hugo Black and John Marshall Harlan II left within days of each other, the shortest period of time between vacancies in the court's history.^[103] Sometimes a great length of time passes between vacancies, such as the 11-year span, from 1994 to 2005, from the retirement of Harry Blackmun to the death of William Rehnquist, which was the second longest timespan between vacancies in the court's history.^[104] On average a new justice joins the court about every two years.^[105]

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, although his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the court. Jimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.

Size of the court

The U.S. Supreme Court consists of nine members: one chief justice and eight associate justices. The U.S. Constitution does not specify the size of the Supreme Court, nor does it specify any specific positions for the court's members. However, the Constitution assumes the existence of the office of the chief justice, because it mentions in Article I, Section 3, Clause 6 that "the Chief Justice" must preside over impeachment trials of the President of the United States. The power to define the Supreme Court's size and membership has been assumed to belong to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through the Judiciary Act of 1789.

The size of the court was first altered by the Midnight Judges Act of 1801 which would have reduced the size of the court to five members upon its next vacancy (as federal judges have life tenure), but the Judiciary Act of 1802 promptly negated the 1801 act, restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew across the continent and as Supreme Court justices in those days had to ride the circuit, an arduous process requiring long travel on horseback or carriage over harsh terrain that resulted in months-long extended stays away from home, Congress added justices to correspond with the growth such that the number of seats for associate justices plus the chief justice became seven in 1807, nine in 1837, and ten in 1863.^[106][107]

At the behest of Chief Justice Chase and in an attempt by the Republican Congress to limit the power of Democrat Andrew Johnson, Congress passed the Judicial Circuits Act of 1866, 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. Soon after Johnson left office, the new president Ulysses S. Grant,^[108] a Republican, signed into law the Judiciary Act of 1869. This returned the number of justices to nine^[109] (where it has since remained), and allowed Grant to immediately appoint two more judges.

President Franklin D. Roosevelt attempted to expand the court in 1937. His proposal envisioned the 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.^[110] The plan, usually called the "court-packing plan", failed in Congress after members of Roosevelt's own Democratic Party believed it to be unconstitutional. It was defeated 70–20 in the Senate, and the Senate Judiciary Committee reported that it was "essential to the continuance of our constitutional democracy" that the proposal "be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America."^{[111][112][113][114]}

The rise and solidification of a conservative majority on the court during the presidency of Donald Trump sparked a liberal response in the form of calls for court-packing. Democrats in the House of Representatives introduced a bill in April 2021 to expand the Supreme Court from nine to 13 seats, but Speaker of the House Nancy Pelosi refused to bring it to the floor and relatively few Democrats backed it.^[115][116] Shortly after taking office in January 2021, Joe Biden established a presidential commission to study possible reforms to the Supreme Court. The commission's December 2021 final report discussed but took no position on expanding the size of the court.^[117] It remains unclear whether it would be constitutional to expand the size of the Supreme Court in ways understood to be designed to "pack" it with justices that would rule more favorably on a president's agenda or to simply change the ideological composition of the court.^[118][119]

Current justices

There are currently nine justices on the Supreme Court: Chief Justice John Roberts and eight associate justices. Among the current members of the court, Clarence Thomas is the longest-serving justice, with a tenure of 11,774 days (32 years, 86 days) as of January 17, 2024; the most recent justice to join the court is Ketanji Brown Jackson, whose tenure began on June 30, 2022, after being confirmed by the senate on April 7.^[120]

Current justices of the Supreme Court^[121]

Justice / birthdate and place		Appointed by (party)	SCV	Age at		Start date / length of service	Succeeded
				Start	Present
	(Chief Justice) John Roberts January 27, 1955 Buffalo, New York	G. W. Bush (R)	78–22	50	68	September 29, 2005 18 years, 110 days	Rehnquist
	Clarence Thomas June 23, 1948 Pin Point, Georgia	G. H. W. Bush (R)	52–48	43	75	October 23, 1991 32 years, 86 days	Marshall
	Samuel Alito April 1, 1950 Trenton, New Jersey	G. W. Bush (R)	58–42	55	73	January 31, 2006 17 years, 351 days	O'Connor
	Sonia Sotomayor June 25, 1954 New York City, New York	Obama (D)	68–31	55	69	August 8, 2009 14 years, 162 days	Souter
	Elena Kagan April 28, 1960 New York City, New York	Obama (D)	63–37	50	63	August 7, 2010 13 years, 163 days	Stevens
	Neil Gorsuch August 29, 1967 Denver, Colorado	Trump (R)	54–45	49	56	April 10, 2017 6 years, 282 days	Scalia
	Brett Kavanaugh February 12, 1965 Washington, D.C.	Trump (R)	50–48	53	58	October 6, 2018 5 years, 103 days	Kennedy
	Amy Coney Barrett January 28, 1972 New Orleans, Louisiana	Trump (R)	52–48	48	51	October 27, 2020 3 years, 82 days	Ginsburg
	Ketanji Brown Jackson September 14, 1970 Washington, D.C.	Biden (D)	53–47	51	53	June 30, 2022 1 year, 201 days	Breyer

This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority, as the chief justice has seniority over all associate justices regardless of tenure) on the court:

Court demographics

The court currently has five male and four female justices. Among the nine justices, there are two African American justices (Justices Thomas and Jackson) and one Hispanic justice (Justice Sotomayor). One of the justices was born to at least one immigrant parent: Justice Alito's father was born in Italy.^[122][123]

At least six justices are Roman Catholics, one is Jewish, and one is Protestant. It is unclear whether Neil Gorsuch considers himself a Catholic or an Episcopalian.^[124] Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists.^[125][126] The first Catholic justice was Roger Taney in 1836,^[127] and 1916 saw the appointment of the first Jewish justice, Louis Brandeis.^[128] In recent years the historical situation has reversed, as most recent justices have been either Catholic or Jewish.

Three justices are from the state of New York, two are from Washington, D.C., and one each is from New Jersey, Georgia, Colorado, and Louisiana.^{[129][130][131]} Eight of the current justices received their Juris Doctor from an Ivy League law school: Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan and John Roberts from Harvard; plus Samuel Alito, Brett Kavanaugh, Sonia Sotomayor and Clarence Thomas from Yale. Only Amy Coney Barrett did not; she received her Juris Doctor at Notre Dame.

Previous positions or offices, judicial or federal government, prior to joining the court (by order of seniority following the Chief Justice) include:

The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan

For much of the court's history, every justice was a man of Northwestern European descent, and almost always Protestant. Diversity concerns focused on geography, to represent all regions of the country, rather than religious, ethnic, or gender diversity.^[132] Racial, ethnic, and gender diversity in the court increased in the late 20th century. Thurgood Marshall became the first African-American justice in 1967.^[128] Sandra Day O'Connor became the first female justice in 1981.^[128] In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991.^[133] O'Connor was joined by Ruth Bader Ginsburg, the first Jewish woman on the Court, in 1993.^[134] After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice,^[128] and in 2010 by Elena Kagan.^[134] After Ginsburg's death on September 18, 2020, Amy Coney Barrett was confirmed as the fifth woman in the court's history on October 26, 2020. Ketanji Brown Jackson is the sixth woman and first African-American woman on the court.

There have been six foreign-born justices in the court's history: James Wilson (1789–1798), born in Caskardy, Scotland; James Iredell (1790–1799), born in Lewes, England; William Paterson (1793–1806), born in County Antrim, Ireland; David Brewer (1889–1910), born to American missionaries in Smyrna, Ottoman Empire (now İzmir, Turkey); George Sutherland (1922–1939), born in Buckinghamshire, England; and Felix Frankfurter (1939–1962), born in Vienna, Austria-Hungary (now in Austria).^[128]

Since 1789, about one-third of the justices have been U.S. military veterans. Samuel Alito is the only veteran currently serving on the court.^[135] Retired justices Stephen Breyer and Anthony Kennedy also served in the U.S. military.^[136]

Retired justices

There are currently three living retired justices of the Supreme Court of the United States: Anthony Kennedy, David Souter, and Stephen Breyer. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the chief justice, on request of the chief judge of the lower court and with the consent of the retired justice. In recent years, Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court.^[137] The status of a retired justice is analogous to that of a circuit or district court judge who has taken senior status, and eligibility of a Supreme Court justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.

In recent times, justices tend to strategically plan their decisions to leave the bench with personal, institutional, ideological, partisan, and sometimes even political factors playing a role.^[138][139] The fear of mental decline and death often motivates justices to step down. The desire to maximize the court's strength and legitimacy through one retirement at a time, when the court is in recess and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a philosophically compatible president holding office, to ensure that a like-minded successor would be appointed.^[140][141]

Retired justices of the Supreme Court^[121]

Justice Birthdate and place		Appointed by	Age at		Tenure (active service)
			Retirement	Present	Start date	End date	Length
	Anthony Kennedy July 23, 1936 Sacramento, California	Reagan (R)	82	87	February 18, 1988	July 31, 2018	30 years, 163 days
	David Souter September 17, 1939 Melrose, Massachusetts	G. H. W. Bush (R)	69	84	October 9, 1990	June 29, 2009	18 years, 263 days
	Stephen Breyer August 15, 1938 San Francisco, California	Clinton (D)	83	85	August 3, 1994	June 30, 2022	27 years, 331 days

Seniority and seating

The Roberts Court (since June 2022): Front row (left to right): Sonia Sotomayor, Clarence Thomas, Chief Justice John Roberts, Samuel Alito, and Elena Kagan. Back row (left to right): Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh, and Ketanji Brown Jackson.

For the most part, the day-to-day activities of the justices are governed by rules of protocol based upon the seniority of justices. The chief justice always ranks first in the order of precedence—regardless of the length of their service. The associate justices are then ranked by the length of their service. The chief justice sits in the center on the bench, or at the head of the table during conferences. The other justices are seated in order of seniority. The senior-most associate justice sits immediately to the chief justice's right; the second most senior sits immediately to their left. The seats alternate right to left in order of seniority, with the most junior justice occupying the last seat. Therefore, since the October 2022 term, the court sits as follows from left to right, from the perspective of those facing the court: Barrett, Gorsuch, Sotomayor, Thomas (most senior associate justice), Roberts (chief justice), Alito, Kagan, Kavanaugh, and Jackson. Likewise, when the members of the court gather for official group photographs, justices are arranged in order of seniority, with the five most senior members seated in the front row in the same order as they would sit during Court sessions, and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions.

In the justices' private conferences, current practice is for them to speak and vote in order of seniority, beginning with the chief justice first and ending with the most junior associate justice. By custom, the most junior associate justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving beverages and transmitting orders of the court to the clerk.^[142]

Salary

As of 2021, associate justices receive a yearly salary of $268,300 and the chief justice is paid $280,500 per year.^[143] Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement.

Judicial leanings

Although justices are nominated by the president in power, and receive confirmation by the Senate, justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches. Jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings generally refer to a legal outlook rather than a political or legislative one. The nominations of justices are endorsed by individual politicians in the legislative branch who vote their approval or disapproval of the nominated justice. The ideologies of jurists can be measured and compared with several metrics, including the Segal–Cover score, Martin-Quinn score, and Judicial Common Space score.^[144][145]

Since the confirmation of Amy Coney Barrett in 2020 following the death of Ruth Bader Ginsburg, the court has had six justices appointed by Republican presidents and three appointed by Democratic presidents. It is popularly accepted that Chief Justice Roberts and associate justices Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, appointed by Republican presidents, compose the court's conservative wing, and that Justices Sotomayor, Kagan, and Jackson, appointed by Democratic presidents, compose the court's liberal wing.^[146] Kavanaugh was considered one of the most conservative judges in the DC Circuit prior to his appointment to the Supreme Court.^[147][148] Likewise, Barrett's brief track record on the Seventh Circuit is conservative.^[149] Prior to Justice Ginsburg's death, Chief Justice Roberts was considered the court's median justice (with four justices more liberal and four more conservative than him), making him the ideological center of the conservative court.^[150][151] Since Ginsburg's death and Barrett's confirmation, Kavanaugh has been described as the median justice of this more conservative court, based on the criterion that he has been in the majority more than any other justice.^[152]

Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions."^[153] He pointed out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defied the popular conception of the ideological lines of the court.^[154] Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) were an illustration that the conservative justices had not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacked merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.

Percentage of cases decided unanimously and by a one-vote margin from 1971 to 2016

According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5–4 vote, with an average of 70% of those split opinions decided by a court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the court has divided along ideological lines, which represents about 44% of all the 5–4 decisions.^[155]

In the October 2010 term, the court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the court reverses a lower court without arguments and without issuing an opinion on the case).^[156][157] Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9–0 or 8–0), and 16 decisions were made by a 5–4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term).^[158] However, in fourteen of the sixteen 5–4 decisions, the court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5–4 decisions, the highest cohesion rate of that bloc in the Roberts Court.^[156][159]

The October 2017 term had a low rate of unanimous rulings, with only 39% of the cases decided by unanimous rulings, the lowest percentage since the October 2008 term when 30% of rulings were unanimous.^[160] Chief Justice Roberts was in the majority most often (68 out of 73 cases, or 93.2%), with retiring Justice Anthony Kennedy in second (67 out of 73 cases, or 91.8%); this was typical of the Roberts Court, in which Roberts and Kennedy have been in the majority most frequently in all terms except for the 2013 and 2014 terms (though Kennedy was in the top on both those terms).^[161] Justice Sotomayor was the justice least likely to be in the majority (in 50 out of 73 cases, or 68.5%). The highest agreement between justices was between Ginsburg and Sotomayor, who agreed on 95.8% of the cases, followed by Thomas and Alito agreeing on 93% of cases. There were 19 cases that were decided by a 5–4 vote (26% of the total cases); 74% of those cases (14 out of 19) broke along ideological lines, and for the first time in the Roberts Court, all of those resulted in a conservative majority, with Roberts, Kennedy, Thomas, Alito, and Gorsuch on the majority.^[161]

The October 2018 term, which saw the replacement of Anthony Kennedy by Brett Kavanaugh, once again saw a low rate of unanimity: only 28 of 71 decided cases were decided by a unanimous court, about 39% of the cases.^[162][163] Of these, only 19 cases had the justices in total agreement. Chief Justice Roberts was once again the justice most often in the majority (61 out of 72 cases, or 85% of the time). Although Kavanaugh had a higher percentage of times in the majority, he did not participate in all cases, voting in the majority 58 out of 64 times, or 91% of the cases in which he participated. Of the justices who participated in all 72 cases, Kagan and Alito tied in second place, voting in the majority 59 out of 72 times (or 82% of the time). Looking only at cases that were not decided unanimously, Roberts and Kavanaugh were the most frequently in the majority (33 cases, with Roberts being in the majority in 75% of the divided cases, and Kavanaugh in 85% of the divided cases he participated in). Of 20 cases that were decided by a vote of 5–4, eight featured the conservative justices in the majority (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh), and eight had the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) joined by a conservative: Gorsuch was the most frequent, joining them four times, and the remaining conservative justices joining the liberals once each. The remaining four cases were decided by different coalitions.^[163] The highest agreement between justices was between Roberts and Kavanaugh, who agreed at least in judgement 94% of the time; the second highest agreement was again between Ginsburg and Sotomayor, who agreed 93% of the time. The highest rate of full agreement was between Ginsburg and Kagan (82% of the time), closely followed by Roberts and Alito, Ginsburg and Sotomayor, and Breyer and Kagan (81% of the time). The largest rate of disagreement was between Thomas and both Ginsburg and Sotomayor; Thomas disagreed with each of them 50% of the time.^[163]

By the completion of the 2021 term, the percent of 6–3 decisions favoring the conservative majority had reached 30%, with the percent of unanimous cases having dropped to the same number.^[164]

Justices as circuit justices

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "circuit justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time. Under the Judiciary Act of 1789, each justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many justices, who cited the difficulty of travel. Moreover, there was a potential for a conflict of interest on the court if a justice had previously decided the same case while riding circuit. Circuit riding ended in 1901, when the Circuit Court of Appeals Act was passed, and circuit riding was officially abolished by Congress in 1911.^[186]

The circuit justice for each circuit is responsible for dealing with certain types of applications that, by law and the rules of the court, may be addressed by a single justice. Ordinarily, a justice will resolve such an application by simply endorsing it "granted" or "denied" or entering a standard form of order; however, the justice may elect to write an opinion, referred to as an in-chambers opinion. Congress has specifically authorized one justice to issue a stay pending certiorari in 28 U.S.C. § 2101(f). Each justice also decides routine procedural requests, such as for extensions of time.

Before 1990, the rules of the Supreme Court also stated that "a writ of injunction may be granted by any Justice in a case where it might be granted by the Court."^[187] However, this part of the rule (and all other specific mention of injunctions) was removed in the Supreme Court's rules revision of December 1989.^[188][189] Nevertheless, requests for injunctions under the All Writs Act are sometimes directed to the circuit justice. In the past, circuit justices also sometimes granted motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal.^[190]

A circuit justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A circuit justice sitting with the Court of Appeals has seniority over the chief judge of the circuit.^[191] The chief justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each associate justice is assigned to one or two judicial circuits.

As of September 28, 2022, the allotment of the justices among the circuits is as follows:^[192]

Five of the current justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Sotomayor (Second Circuit), Justice Alito (Third Circuit), Justice Barrett (Seventh Circuit), and Justice Gorsuch (Tenth Circuit).

Term

A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of around two weeks known as "sittings" and "recesses"; justices hear cases and deliver rulings during sittings, and discuss cases and write opinions during recesses.^[193]

Case selection

Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as cert, upon which the court grants a writ of certiorari. The court may review via this process any civil or criminal case in the federal courts of appeals.^[194] It may also review by certiorari a final judgment of the highest court of a state if the judgment involves a question of federal statutory or constitutional law.^[195] A case may alternatively come before the court as a direct appeal from a three-judge federal district court.^[196] The party that petitions the court for review is the petitioner and the non-mover is the respondent.

Case names before the court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

The court also hears questions submitted to it by appeals courts themselves via a process known as certification.^[194]

The Supreme Court relies on the record assembled by lower courts for the facts of a case and deals solely with the question of how the law applies to the facts presented. There are however situations where the court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford,^[197] parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact.^[198] Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury.^[199] Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.

A cert petition is voted on at a session of the court called conference. A conference is a private meeting of the nine justices by themselves; the public and the justices' clerks are excluded. The rule of four permits four of the nine justices to grant a writ of certiorari. If it is granted, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition. The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:

• Resolving a conflict between circuit courts in the interpretation of a federal law or a provision of the federal Constitution
• Correcting an egregious departure from the accepted and usual course of judicial proceedings
• Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the court.

When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split"; if the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the case's final ruling. To manage the high volume of cert petitions received by the court each year (of the more than 7,000 petitions the court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the court employs an internal case management tool known as the "cert pool"; currently, all justices except for Justices Alito and Gorsuch participate in the cert pool.^{[200][201][202][203]}

Oral argument

Seth P. Waxman at oral argument presents his case and answers questions from the justices.

When the court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the court, amici curiae, or "friends of the court", may also file briefs. The court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the court may choose to give more time, although this is rare),^[204] and during that time, the justices may interrupt the advocate and ask questions. In 2019, the court adopted a rule generally allowing advocates to speak uninterrupted for the first two minutes of their argument.^[205] The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The court advises counsel to assume that the justices are familiar with and have read the briefs filed in a case.

Supreme Court bar

In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys. The rest join for a one-time fee of $200, with the court collecting about $750,000 annually. Attorneys can be admitted as either individuals or as groups. The group admission is held before the current justices of the Supreme Court, wherein the chief justice approves a motion to admit the new attorneys.^[206] Lawyers commonly apply for the cosmetic value of a certificate to display in their office or on their resume. They also receive access to better seating if they wish to attend an oral argument.^[207] Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library.^[208]

Decision

At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the justices. After the oral argument is concluded, usually in the same week as the case was submitted, the justices retire to another conference at which the preliminary votes are tallied and the court sees which side has prevailed. One of the justices in the majority is then assigned to write the court's opinion, also known as the "majority opinion", an assignment made by the most senior justice in the majority, with the chief justice always being considered the most senior. Drafts of the court's opinion circulate among the justices until the court is prepared to announce the judgment in a particular case.^[209]

Justices are free to change their votes on a case up until the decision is finalized and published. In any given case, a justice is free to choose whether or not to author an opinion or else simply join the majority or another justice's opinion. There are several primary types of opinions:

• Opinion of the court: this is the binding decision of the Supreme Court. An opinion that more than half of the justices join (usually at least five justices, since there are nine justices in total; but in cases where some justices do not participate it could be fewer) is known as "majority opinion" and creates binding precedent in American law. Whereas an opinion that fewer than half of the justices join is known as a "plurality opinion" and is only partially binding precedent.
• Concurring: a justice agrees with and joins the majority opinion but authors a separate concurrence to give additional explanations, rationales, or commentary. Concurrences do not create binding precedent.
• Concurring in the judgment: a justice agrees with the outcome the court reached but disagrees with its reasons for doing so. A justice in this situation does not join the majority opinion. Like regular concurrences, these do not create binding precedent.
• Dissent: a justice disagrees with the outcome the court reached and its reasoning. Justices who dissent from a decision may author their own dissenting opinions or, if there are multiple dissenting justices in a decision, may join another justice's dissent. Dissents do not create binding precedent. A justice may also join only part(s) of a particular decision, and may even agree with some parts of the outcome and disagree with others.

It is the court's practice to issue decisions in all cases argued in a particular term by the end of that term. Within that term, the court is under no obligation to release a decision within any set time after oral argument. Since recording devices are banned inside the courtroom of the Supreme Court Building, the delivery of the decision to the media is done via paper copies and is known as the "Running of the Interns".^[210]

It is possible that through recusals or vacancies the court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices.^[211] If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the court had been evenly divided. For cases brought to the Supreme Court by direct appeal from a United States District Court, the chief justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.^[212] This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945).^[213]

Published opinions

The court's opinions are published in three stages. First, a slip opinion is made available on the court's web site and through other outlets. Next, several opinions and lists of the court's orders are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued by the Reporter of Decisions. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports (or a competing version published by another commercial legal publisher but containing parallel citations) to allow those who read their pleadings and other briefs to find the cases quickly and easily. As of January 2019, there are:

• Final bound volumes of U.S. Reports: 569 volumes, covering cases through June 13, 2013 (part of the October 2012 term).^[214][215]
• Slip opinions: 21 volumes (565–585 for 2011–2017 terms, three two-part volumes each), plus part 1 of volume 586 (2018 term).^[216]

As of March 2012, the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012. This figure does not reflect the number of cases the court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle, where Meredith v. Jefferson County Board of Education was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which are a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.

Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter, published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals and other legal media, case citations generally contain cites from each of the three reporters; for example, citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Com'n, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition.^[217][218]

Constraints

The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"^[221] Some state governments in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the court's order in United States v. Nixon (1974) to surrender the Watergate tapes.^[222] Nixon ultimately complied with the Supreme Court's ruling.^[223]

Supreme Court decisions can be purposefully overturned by constitutional amendment, something that has happened on six occasions:

• Chisholm v. Georgia (1793) – overturned by the Eleventh Amendment (1795)
• Dred Scott v. Sandford (1857) – overturned by the Thirteenth Amendment (1865) and the Fourteenth Amendment (1868)
• Pollock v. Farmers' Loan & Trust Co. (1895) – overturned by the Sixteenth Amendment (1913)
• Minor v. Happersett (1875) – overturned by the Nineteenth Amendment (1920)
• Breedlove v. Suttles (1937) – overturned by the Twenty-fourth Amendment (1964)
• Oregon v. Mitchell (1970) – overturned by the Twenty-sixth Amendment (1971)

When the court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter Fair Pay Act of 2009, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional consideration: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.^[224]

In addition, the other two branches can restrain the court through other mechanisms. Congress can increase the number of justices, giving the president power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The court sanctioned such congressional action in the Reconstruction Era case ex parte McCardle (1869), although it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871).

On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government; for example, in United States v. Curtiss-Wright Export Corp. (1936), Dames & Moore v. Regan (1981), and notably in Goldwater v. Carter (1979), which effectively gave the presidency the power to terminate ratified treaties without the consent of Congress. The court's decisions can also impose limitations on the scope of Executive authority, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).

Politicization of the court

Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s," according to a study published in 2009 by the law review of Vanderbilt University Law School.^[228][229] "As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts," former federal court of appeals judge J. Michael Luttig said.^[228] David J. Garrow, professor of history at the University of Cambridge, stated that the court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists."^[228]

According to the Vanderbilt Law Review study, this politicized hiring trend reinforces the impression that the Supreme Court is "a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law."^[228] A poll conducted in June 2012 by The New York Times and CBS News showed just 44% of Americans approve of the job the Supreme Court is doing. Three-quarters said justices' decisions are sometimes influenced by their political or personal views.^[230] One study, using four-year panel data, found that public opinion of the Supreme Court was highly stable over time.^[231] In 2023 a Gallup poll found that trust in the Supreme Court was at a historic low of 47%, the previous lowest rating was 53%.^[232]

Ethics

Ethical controversies have grown with reports of justices (and their close family members) accepting expensive gifts, travel, business deals, and speaking fees without oversight or recusals from cases that present conflicts of interest.^{[233][234][235][236][237][238][239]} Spousal income and connections to cases has been redacted from the Justices' ethical disclosure forms^[240] while justices, such as Clarence Thomas, failed to disclose many large financial gifts including a free vacation valued at $500,000.^[241]

On November 13, 2023, the court issued its first-ever Code of Conduct for Justices of the Supreme Court of the United States to set "ethics rules and principles that guide the conduct of the Members of the Court."^[242][243] The Code has generally been received as a significant first step but also as a measure that does not address the ethics concerns of many notable critics who found the Code relatively weaker than those for federal judges, the legislature and the executive branch while also lacking an enforcement mechanism.^{[244][245][246][247]} The Code's commentary denied past wrongdoing by saying that the Justices have largely abided by these principles and are simply publishing them now.^{[248][249][250]} This has prompted some criticism that the court hopes to legitimize past and future scandals through this Code.^[251][252]

Increasing partisanship

Unlike constitutional courts in most democracies and contrary to the ideal taught in civics classes, the U.S. Supreme Court appears to be an increasingly partisan institution.^[256][257] The partisan refusal to act on the nomination of Merrick Garland, citing a presidential election that was eight months away, together with the same partisan majority expediting the nomination of Amy Coney Barrett held less than 2 months before the 2020 presidential election four years later, showed that the Senate deems the institution to be of partisan importance.^[257] Further evidence of partisanship can be found in the sinking confidence ratings for the Court among Independents (25%) and Democrats (13%) in the 2022 Gallup poll.^[258] Lastly, FiveThirtyEight found the number of unanimous decisions dropped from the 20-year average of nearly 50% to nearly 30% in 2021 while party-line rulings increased from a 60-year average just above zero to a record high 21%.^[259]

Individual rights

Some of the most notable decisions that were criticized for failing to protect individual rights include the Dred Scott (1857) decision that upheld slavery^[260] and Plessy v. Ferguson (1896) that upheld segregation under the doctrine of separate but equal.^[261] The upholding of voter ID laws has received criticism as a subtler method of disenfranchising poor and minority voters.^[262] Senator Al Franken criticized the court for "eroding individual rights."^[263] Kelo v. City of New London (2005) received criticism from some as undermining property rights.^[264][265] However, others argue that the court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.^[266]

Judicial activism

The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology.^[267] An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts,^[267][268] and which was reversed in the 1930s.^{[269][270][271]}

An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion on the basis of the "right to privacy" inferred from the Fourteenth Amendment, a reasoning that some critics argued was circuitous,^[267] and the case was overturned by Dobbs v. Jackson (2022). Legal scholars,^[272][273] justices,^[274] and presidential candidates^[275] have criticized the Roe decision.

The reasoning of Brown v. Board of Education, banning racial segregation in public schools, has been criticized by conservatives such as Patrick Buchanan,^[276] former associate justice nominee and solicitor general Robert Bork^[277] and former presidential contender Barry Goldwater.^[278]

More recently, Citizens United v. Federal Election Commission was criticized for expanding upon the precedent in First National Bank of Boston v. Bellotti (1978) that the First Amendment applies to corporations.^[279] President Abraham Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court... the people will have ceased to be their own rulers."^[280] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."^[281]

During different historical periods, the court has leaned in different directions.^[282][283] Critics from both sides complain that activist judges abandon the Constitution and substitute their own views instead.^{[284][285][286]} Critics include writers such as Andrew Napolitano,^[287] Phyllis Schlafly,^[288] Mark R. Levin,^[289] Mark I. Sutherland,^[290] and James MacGregor Burns.^[291][292] Past presidents from both parties have attacked judicial activism, including Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan.^[293][294] Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état,– slow-moving and genteel, but a coup d'état nonetheless."^[295] Brian Leiter wrote that "Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power", and "Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial."^[296]

Lifetime tenure

Lifetime tenure of justices can only be found for US Supreme Court Justices and the State of Rhode Island's Supreme Court justices, with all other democratic nations and states favoring term limits.^[297] Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day."^[298] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.^[299] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times."^[291] Proposals to solve these problems include term limits for justices, as proposed by Levinson^[300] and Sabato^[298][301] and a mandatory retirement age proposed by Richard Epstein,^[302] among others.^[303] However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."^[304]

Minority rule and selection biases

The electoral college (which elects the President who nominates the justices) and the US Senate which confirms the justices, have selection biases that favor rural states that tend to vote Republican, resulting in a conservative Supreme Court.^[305] For example, the three Trump appointees to the court were all nominated by a president who finished second in the popular vote and confirmed by Senators representing a minority of Americans.^[306] In addition, Clarence Thomas' confirmation and Merrick Garland's blocked confirmation in 2016 were both decided by Senators representing a minority of Americans.^[307] This has been critiqued as minority rule.^[308][309]

Moreover, the Federalist Society acted as a filter for judicial nominations during the Trump administration,^[310] ensuring the latest conservative justices lean even further to the right.^[305] 86% of judges Trump appointed to circuit courts and the Supreme Court were Federalist Society members.^[311] David Litt critiques it as "an attempt to impose rigid ideological dogma on a profession once known for intellectual freedom."^[312]

Power

This criticism is related to complaints about judicial activism. George Will wrote that the court has an increasingly central role in American governance.^[313] Michael Waldman argued that no other country gives its Supreme Court as much power.^[314] Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power", it is likely to "self-indulge itself", and unlikely to "engage in dispassionate analysis."^[315] Larry Sabato wrote that the federal courts, and especially the Supreme Court, have excessive power.^[298]

Some members of Congress considered the results from the 2021–2022 term a shift of government power into the Supreme Court, and a "judicial coup".^[316] The 2021–2022 term of the court was the first full term following the appointment of three judges by Republican president Donald Trump — Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett — which created a six-strong conservative majority on the court. Subsequently, at the end of the term, the court issued a number of decisions that favored this conservative majority while significantly changing the landscape with respect to rights. These included Dobbs v. Jackson Women's Health Organization which overturned Roe v. Wade and Planned Parenthood v. Casey in recognizing abortion is not a constitutional right, New York State Rifle & Pistol Association, Inc. v. Bruen which made public possession of guns a protected right under the Second Amendment, Carson v. Makin and Kennedy v. Bremerton School District which both weakened the Establishment Clause separating church and state, and West Virginia v. EPA which weakened the power of executive branch agencies to interpret their congressional mandate.^{[317][318][319]}

Ruling on political questions

Some Court decisions have been criticized for injecting the court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election, awarding George W. Bush the presidency over Al Gore, received scrutiny as political in part because it was a conservative court.^{[335][336][337][338][339][340]} Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called political questions.^[341]

Secretive proceedings

The court has been criticized for keeping its deliberations hidden from public view.^[344][345] For example, the increasing use of a 'shadow docket' facilitates the court making decisions in secret without knowing how each Justice came to their decision.^[346][347] A 2007 review of Jeffrey Toobin's book compared the Court to a cartel where its inner-workings are mostly unknown, arguing this lack of transparency reduces scrutiny which hurts ordinary Americans who know little about the nine extremely consequential Justices.^[335] A 2010 poll found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised.^[348][349]

Too few cases

Senator Arlen Specter argued the court should decide more cases.^[263] Justice Scalia acknowledged in a 2009 interview that the number of cases that the court heard then was smaller than when he first joined the Supreme Court, but he also stated that he had not changed his standards for deciding whether to review a case, nor did he believe his colleagues had changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.^[350]

Too slow

British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to navigate their way through the system, their ability to restrain other branches is severely weakened.^[351][352] In contrast, various other countries have a dedicated constitutional court that has original jurisdiction on constitutional claims brought by persons or political institutions; for example, the Federal Constitutional Court of Germany, which can declare a law unconstitutional when challenged.

Too small

The U.S. Supreme Court is the smallest (9 justices) of any major nation and could be expanded without a constitutional amendment.^[353] Some have argued that 9 justices is too small a number to represent the perspectives of more than 300 million people, and that the number of seats on the Supreme Court should be expanded, with Jonathan Turley advocating for 19 justices.^[354][355]

Selected landmark Supreme Court decisions

Bibliography