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Informed Citizens

are Better Citizens

by Jodi L. Miller

A national survey, conducted by Marquette Law School and published in November 2022, revealed that 56% of the public disapprove of the job that the U.S. Supreme Court is doing. A Gallup poll in September 2022 put the number at 58% disapproval.

Ken I. Kersch, a political science professor at Boston College and author of The Supreme Court and American Political Development, says the Court has faced disapproval since its inception.

“The history of the Supreme Court is rife with outbreaks of attacks on individual Supreme Court decisions, and on the legitimacy of the Supreme Court and the federal judiciary more generally,” Professor Kersch says. “Supreme Court justices have often been politicians before serving on the bench. This means that they have ties to political parties, which often take positions on constitutional issues when campaigning for election. And, just as is the case today, they have often been identified with distinctive, and even antagonistic, approaches to interpreting and applying the Constitution.”

Professor Kersch points to one of the U.S. Supreme Court’s earliest decisions—Chisholm v. Georgia (1793)—where the Court ruled that two South Carolina men could sue the state of Georgia for debts they were owed. The fallout from that decision led to the U.S. Constitution’s 11th Amendment which prohibits any federal court from hearing cases where individuals from one state attempt to sue another state. He also notes several other Supreme Court decisions that were controversial at the time, including McCulloch v. Maryland (1819), which upheld the constitutionality of a national bank, and Brown v. Board of Education (1954), which found racial segregation of children in public schools unconstitutional.

“Challenges [to the U.S. Supreme Court] have been common, to the point of being routine, throughout American history,” says Professor Kersch. “That is the fate of the Supreme Court as both a legal and a political institution. It does not exist outside of American politics.”

In addition, Professor Kersch says that many presidents have campaigned on unpopular U.S. Supreme Court decisions. For example, during his presidential campaign, Theodore Roosevelt attacked the Court’s decision in Lochner v. New York (1905), which struck down a New York law regulating bakery workers’ hours.

“Similarly, Abraham Lincoln campaigned for the U.S. Senate, and then the Presidency, by attacking the Supreme Court’s Dred Scott (1857) decision, which held that it was unconstitutional for an American state or territory to ban slavery,” Professor Kersch says.

In his first inaugural address President Lincoln indicated his misgivings about the U.S. Supreme Court’s power.

“The candid citizen must confess that if the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by the Supreme Court,” President Lincoln said, “the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

Origins of the Court

Article III, Section 1 of the U.S. Constitution established the U.S. Supreme Court. It reads: “The judicial Power of the United States shall be vested in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

It should be noted that by “inferior courts” the Framers of the Constitution did not refer to the quality of the courts but the fact that these courts would be lower than the U.S. Supreme Court, meaning that the Supreme Court would have final say over federal law. In addition to serving on the highest court in the land, in the early days, each U.S. Supreme Court justice was required to travel to other federal judicial districts, also known as circuits, to hear lower cases. This practice was known as “circuit riding” and was pretty unpopular among the justices. Circuit riding remained in place for a little over a century until an act of Congress abolished it in 1891.

The U.S. Constitution set up the U.S. Supreme Court, but Congress’ passage of the Judiciary Act of 1789 and the Evarts Act of 1891 is where our modern-day, three-tier court structure comes from. In the federal system, the U.S. Supreme Court sits at the top. Beneath that are circuit courts, also known as courts of appeals, and beneath that are district courts. The Evarts Act established the role of the U.S. Courts of Appeal, or U.S. Circuit Courts, which eliminated the need for “circuit riding.”

Today, in the federal court system, there are 94 district courts, where a single judge presides; and 12 regional circuit courts where appeals are heard by a three-judge panel. In addition, the middle tier includes a 13th appeals court—the Court of Appeals for the Federal Circuit.

Power of the U.S. Supreme Court

While the U.S. Supreme Court was established via the U.S. Constitution, its power was solidified with the ruling in Marbury v. Madison (1803). The case centered around William Marbury, who was one of 42 new justices of the peace appointed by outgoing President John Adams. Marbury’s commission, as well as several others, was not delivered before incoming President Thomas Jefferson took office. Once in office, President Jefferson directed that the commissions should not be delivered. When Marbury v. Madison came before the Court, the questions to be decided were whether Marbury—the plaintiff—had a right to receive his commission and could he sue for that right. Also to be decided, was whether the U.S. Supreme Court had the authority to order the delivery of the commission.

It wasn’t so much what the Court decided in the case that made it important. It was the reasoning behind it that set a precedent which endures to this day. The Court found that while Marbury was entitled to his commission, and had a right to sue to obtain it, the U.S. Supreme Court could not grant it to him. The Court held that Section 13 of the Judiciary Act of 1789, the provision that enabled Marbury to bring his claim directly to the U.S. Supreme Court, was itself unconstitutional, since it extended the Court’s original jurisdiction beyond that which Article III, Section 2, of the U.S. Constitution established. Original jurisdiction simply refers to what court can first (or originally) hear a case.

Chief Justice John Marshall, writing for the majority of the Court, reasoned that the Judiciary Act of 1789 conflicted with the U.S. Constitution, and Congress did not have the power to modify the Constitution through regular legislation.

“The government of the United States has been emphatically termed a government of laws, and not of men,” Chief Justice Marshall wrote in the Court’s majority opinion. “It is emphatically the province and duty of the Judicial Department to say what the law is.”

With this decision, Justice Marshall established what is known as “judicial review,” a concept that cemented the U.S. Supreme Court’s authority to declare a law unconstitutional and, therefore, strike it down. Marbury never received his commission. Here’s another fun fact—the signature on these disputed commissions was none other than John Marshall, serving in his capacity as President John Adams’ Secretary of State at the time before he was appointed as Chief Justice of the U.S. Supreme Court.

How the U.S. Supreme Court works

Currently, the U.S. Supreme Court is comprised of one Chief Justice and eight Associate Justices. As per the U.S. Constitution, all federal judges/justices, including U.S. Supreme Court Justices, are appointed by the President of the United States and confirmed by the U.S. Senate. If a judge or justice is not confirmed by a majority of the Senate, the President must appoint another candidate. This process is just one of the ways that the U.S. Constitution puts checks and balances on the three branches of government—Executive (President), Legislative (Congress) and Judicial (Courts).

The U.S. Supreme Court receives as many as 7,000 to 10,000 requests per year to review cases. The Court usually accepts anywhere from 100 to 150 cases for review. The process begins with a challenger submitting a “writ of certiorari,” also called a cert petition. Certiorari is Latin for “to inform, apprise or show.” The justices review the petitions and vote on whether to hear the case. Four of the nine justices must vote in favor of taking a case. The Court refers to this as the Rule of Four. When the Court agrees to take a case, it is called “granting cert.”

As Professor Kersch explains, the Chief Justice of the Court presides over its procedures, processes, conferences, and deliberations. Once a case has been heard before the Court, a vote is taken among the justices. If the Chief Justice is in the majority, Professor Kersch says, they are charged with assigning the writing of the majority opinion to a justice of their choice or they may choose to write it. If the Chief Justice is not in the majority, the most senior justice in the majority has the power to assign the opinion.

Organizations or individuals often submit amicus briefs to the U.S. Supreme Court when they have a vested interest in the outcome of a particular case. Amicus is Latin for friend or comrade, so amicus briefs are also called “friend of the court” briefs. These briefs attempt to persuade the Justices to their side. So, do the Justices put much stock in these briefs? Do they read them?

In fact, according to Professor Kersch, amicus briefs have been very influential in shaping modern U.S. Supreme Court opinions because not only do the Justices read them, but some also end up adopting the legal argument provided in them. Sometimes the Justices cite the briefs in their opinions, Professor Kersch says, and sometimes they don’t. The Justices weigh all the arguments, he says, and then adopt those that they find most persuasive. So, the reality is that any Justice’s legal argument could have come from a lawyer representing an expert or an advocacy group, who has submitted an amicus brief.

“The Justices have no hesitation about adopting the arguments made by the lawyers in those amicus briefs,” Professor Kersch says. “In fact, those who follow these things closely know that it is hard to imagine how the Justices would write judicial opinions without them.”

Ethics Standards

Federal law requires federal judges to recuse themselves from any case “in which their impartiality might reasonably be questioned.” There is also a code of conduct for lower federal judges, and additional misconduct standards as well.

There is no ethics code for U.S. Supreme Court justices. It is up to the individual Justice to decide whether to recuse from a particular case. They are not forced to do so.

“To the extent these standards are enforceable, they are enforceable only by higher ranking judges,” Professor Kersch says. “Because there are no higher-ranking judges than the Justices of the U.S. Supreme Court, there is no one to enforce the standards against them, outside of the possibility that they would be impeached and removed from office.”

Again, this is dictated by the separation of powers or checks and balances outlined in the U.S. Constitution. It means that the President and Congress do not have the power to discipline members of the U.S. Supreme Court.

“To allow that would make them superior to the U.S. Supreme Court, in a matter where the Court is given the power under the U.S. Constitution to operate independent of the other branches,” says Professor Kersch. “In areas where the judiciary is constitutionally authorized to act, to subject the Supreme Court’s justices to external supervision would potentially undermine judicial independence, autonomy, and supremacy in a way contrary to the Constitution’s logic and design.”

Discussion Questions

  1. What do you think of judicial review and the decision in Marbury v. Madison?
  2. How do you think the U.S. Supreme Court could improve its approval rating? Is that something that the Court should be concerned about? Explain your answer.
  3. What do you think about the fact that the U.S. Supreme Court does not have an ethics code or code of conduct to follow? Should there be a code of conduct for Supreme Court justices? If so, who do you think should oversee implementation? Explain your answer.
  4. Read the Bonus Content below. Several measures for reforming the U.S. Supreme Court are discussed, including court packing, instituting term limits/mandatory retirement age, or rotating Court membership. Select one of these proposals and explain why you think it would be the best course of action.

BONUS CONTENT: Supreme Court Reforms—from Court Packing to Term Limits

Amid calls for U.S. Supreme Court reform, President Joseph Biden issued an executive order in April 2021 that formed the Presidential Commission on the Supreme Court of the United States. The commission, comprised of experts on the Court and the Court reform debate, was not established to make recommendations to the President, but to provide “analysis of the principal arguments in the contemporary public debate for and against Supreme Court reform, including an appraisal of the merits and legality of particular reform proposals.” In December 2021, the commission submitted its final report to the President.

Throughout history, when the legitimacy of the Court has come into question, several remedies have been proposed. One such remedy, considered by President Franklin Roosevelt, was court packing. Membership on the U.S. Supreme Court has fluctuated over the years. It has been as low as five Justices and as high as 10. Since 1869, the number has been steady at nine Justices.

In 1937, President Roosevelt, frustrated at the U.S. Supreme Court for invalidating parts of his New Deal legislation, devised a “court-packing” plan after a two-year study by the Department of Justice (DOJ) that considered several Court reform plans. Because the U.S. Constitution does not specify how many justices should be on the Court, the DOJ advised that “the proposal to enlarge the Supreme Court, while not without flaw, was the only one which is certainly constitutional and…may be done quickly and with a fair assurance of success.” President Roosevelt’s plan involved him appointing one additional Justice for each Justice over age 70, unless they retired within six months. This potentially could have expanded the Court to 15 members.

In one of his famous fireside chats, President Roosevelt appealed to the American people, saying that “new blood” was needed on the Court because it was “acting not as a judicial body, but as a policy-making body.” Even though President Roosevelt’s party controlled 70% of Congress at the time, many thought of the move as an attempt to grab more power for the Presidency. By July 1937, the plan had been defeated.

In the 1950s, an amendment to the U.S. Constitution, which would permanently fix the number of U.S. Supreme Court justices at nine, was proposed. The measure passed in the U.S. Senate but failed in the House of Representatives.

Court packing has been mentioned in the current debate over Court reform, as well, arguing that it would allow for more diversity on the Court. Out of all the justices appointed to the U.S. Supreme Court—approximately 130 so far—only eight have been either a woman or a person of color.

The commission’s report to President Biden states: “Critics of court expansion worry that such efforts would pose considerable risk to our constitutional system, including by spurring parties able to take control of the White House and Congress at the same time to routinely add Justices to bring the Court more into line with their ideological stances or partisan political aims.”

In the past, other plans for altering the composition of the Court, according to the commission’s report, included rotating the Court’s membership, which “would structure the Supreme Court as a shifting or rotating set of nine (or more) Justices from among a larger set of Article III judges.” The details of how rotation would work vary, but essentially the Justices would rotate between service on the U.S. Supreme Court, as well as on lower federal courts.

Another plan mentioned in the report outlines a plan to have the Justices sit on panels to hear cases, similar to circuit courts that have three-judge panels. These subsets could be charged with hearing certain types of cases. “For instance, one subset of Justices might be entrusted to decide questions of original jurisdiction, another subset of Justices might be empowered to hear appeals,” the report states. Both the rotating plan and the three-judge panel scheme are thought to violate the “one Supreme Court” directive from Article III, Section I of the U.S. Constitution.

Imposing term limits on U.S. Supreme Court Justices is another popular solution for Supreme Court reform. However, the wording “shall hold their Offices during good Behavior” in Article III has been interpreted to mean that Justices on the Court—and lower federal court judges for that matter—have lifetime appointments. In other words, unless the Justice wants to retire, they cannot be made to do so and many have stayed on the bench until their death. According to the commission’s report, “The United States is the only major constitutional democracy in the world that has neither a retirement age nor a fixed term of years for its high court justices.”

An Associated Press-NORC Center for Public Affairs Research poll revealed that 67% of Americans support term limits or a mandatory retirement age for U.S. Supreme Court Justices. Several suggestions for term limits have been proposed; most, including legislation proposed by U.S. Senator Cory Booker of New Jersey, would cap terms at 18 years. In 1954, the U.S. Senate proposed a constitutional amendment that would have mandated a retirement age of 75 for all federal judges, including U.S. Supreme Court justices. The effort failed. The commission’s report to the President points out that in order to consider either term limits or a minimum retirement age, the U.S. Constitution would need to be amended.

Glossary Words
— a complaint to a higher court regarding the decision of a lower court.
ideological – a way of thinking that is characteristic of a political system.
majority opinion — a statement written by a judge or justice that reflects the opinion reached by the majority of their colleagues.
partisan — someone who supports a party or cause with great devotion.
plaintiff — person or persons bringing a civil lawsuit against another person or entity.
precedent — a legal case that will serve as a model for any future case dealing with the same issues.
recuse — (in terms of a judge) excuse oneself from hearing a case because of a conflict of interest.