Supreme Court of the United States

V

Membership

The Constitution does not specify the number of justices on the Supreme Court, leaving the issue to Congress. The first Supreme Court in 1789 consisted of five justices. Initially the justices’ duties included traveling through the country to hear cases in federal circuit courts. Congress added a sixth seat in 1790 and a seventh in 1807 to ease the strain on justices as the number of circuit courts increased. Congress added the eighth and ninth seats in 1837. Membership stayed at nine until 1863, when Congress added a tenth seat, only to abolish it when a justice died in 1865. In 1867 Congress reduced the seats to seven to limit the opportunity of President Andrew Johnson to appoint new members. Congress restored the number of seats to nine in 1869, and in 1891 abolished the Supreme Court justices’ circuit-riding burden. The number of justices has remained fixed at nine, making tie votes unlikely unless circumstances prevent a justice from participating in deliberations.

VI

Qualifications

The Constitution does not specify formal qualifications for membership on the Supreme Court. From the beginning, though, justices have all been lawyers, and most pursued legal and political careers before serving on the Court. Many justices served as members of Congress, governors, or members of the Cabinet. One president, William Howard Taft, was later appointed chief justice. Some justices came to the Court from private law practice, and others were appointed from positions as law professors. Many justices appointed in the second half of the 20th century had experience in the United States courts of appeal and other lower courts. Only one justice, Charles Evans Hughes, was confirmed as a Supreme Court justice twice. President Taft appointed Hughes, then governor of New York, to the Court in 1910. Hughes gave up his Court seat in 1916 to run for president, but he lost in a close race against Woodrow Wilson. In 1930 President Herbert Hoover returned Hughes to the Court as chief justice.

VII

Appointment and Confirmation

Justices of the Supreme Court are appointed by the president and must be confirmed by a majority vote in the Senate. The president usually chooses the nominees carefully to minimize the possibility that the justice will veer far from the administration’s own agenda after he or she is confirmed. The president must also be careful to select a nominee with strong chances for Senate confirmation, otherwise the administration may lose prestige in a bruising confirmation battle with the Senate. Presidents often try to secure Senate support by balancing the Court’s geographic and regional background. Many 20th-century presidents have also tried to balance the Court’s religious, racial, ethnic, and gender makeup.

Only Protestants served on the Court until 1836, when the Senate confirmed President Andrew Jackson’s nomination of Roger B. Taney, a Catholic. Since then there has almost always been a Catholic on the Court. Louis D. Brandeis was the first Jewish justice in 1916. Civil rights lawyer Thurgood D. Marshall became the first African American justice in 1967. President Ronald Reagan appointed the first woman, Sandra Day O’Connor, in 1981. The first Italian American, Antonin Scalia, came to the Court in 1986.

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On average, the Senate rejects about 20 percent of all nominees to the Supreme Court. The president’s choice must face questioning by the Senate Judiciary Committee, which then makes a recommendation to the Senate as a whole. The Senate began asking nominees to appear before the Judiciary Committee only in 1925, when President Calvin Coolidge’s nomination of Harlan Fiske Stone was in jeopardy. Felix Frankfurter, a nominee of President Franklin Delano Roosevelt, testified before the Senate Judiciary Committee in 1939. Such appearances before the committee became accepted practice in 1955, when John M. Harlan testified.

Confirmation hearings are sometimes polite, quiet affairs, but some have been intensely political dramas that have gripped the nation. In 1987, for example, the Senate held 12 days of rancorous hearings into President Ronald Reagan’s nomination of Judge Robert Bork. Although Bork had strong qualifications, his conservative views led many groups throughout the country to oppose his nomination. Some senators charged that he had undergone a “confirmation conversion”—contradicting his earlier published views to secure appointment. The full Senate defeated the nomination by a vote of 58 to 42. In 1991 President George W. Bush nominated Judge Clarence Thomas to replace the ailing Thurgood Marshall. An initial debate over his qualifications gave way to a nationally televised drama over a leaked accusation by Oklahoma University Law School Professor Anita Hill that Thomas had sexually harassed her. Thomas bitterly denied the allegations, charging that he was the victim of a “high-tech lynching.” The Senate eventually confirmed him by a vote of 52 to 48, the second closest vote in history.

VIII

Removal from Office

Justices serve lifetime appointments. Under the Constitution they can be removed from the Court only by first being impeached (accused) by a majority vote of the U.S. House of Representatives and then convicted by a two-thirds vote of the Senate. There is no precise standard for determining whether a justice has committed an impeachable offense, though the consensus is that removal should be for criminal or ethical lapses, not for partisan political reasons. No justice has ever been removed through this process, and only one justice of the Supreme Court has ever been impeached. In 1805 Justice Samuel Chase was impeached in the House by his political enemies, but the Senate failed to convict when it became apparent that Chase’s opponents were after him not because he had committed any wrongdoing but because they disagreed with his decisions. The possibility of impeachment may have been a factor in the resignation of Justice Abe Fortas, who left the Court in 1969 after allegations surfaced that he had accepted a questionable fee from a private foundation. Some conservative groups rallied for the removal of Chief Justice Earl Warren in the 1960s, but their efforts failed.

In the wake of the controversy over Abe Fortas’s financial practices, the Court became more restrained in its public activities. Once confirmed to the Court, justices try to ensure that their investments and outside income do not bring their integrity into question. Common practice now dictates that justices also remove themselves from politics, refraining from speaking out about controversial issues or pending legislation. The justices can make public speeches, but these are usually confined to subjects related to the law in general and to the federal court system. In these and other questions of judicial ethics the Court usually follows the American Bar Association (ABA) Code of Judicial Conduct, although these rules are not binding on the Court.

IX

The Work of the Court

The Supreme Court hears only a tiny fraction of the cases that come before it. When the Court declines to hear a case, the decision of the lower court stands as the final word on the case. Each year the Court receives thousands of petitions to hear cases, but it usually decides to consider only a few. By the early 21st century, for example, the Court typically had about 10,000 cases on its docket. The justices usually heard oral arguments in just 100 cases and issued signed opinions—written explanations of its decisions—in only 80 to 90. In the late 20th century the Court’s docket had been much smaller, consisting of about 5,185 cases in 1985, although it issued signed opinions in 151 cases that year.

The growth in petitions has many causes: a larger population, a more complex economy, and the proliferation of business and other relationships. Adding to the Court’s workload is a steady growth in congressional and state legislation that requires judicial interpretation, and an increasing number of constitutional and other issues that can be reviewed in the federal courts.

By law the Court’s term begins the first Monday in October and usually runs through the end of June, after disposing of all cases that have been argued during the term. On rare occasions, when a critical case has arisen, the Court has heard arguments and issued decisions in the summer; for example, in 1974 the Court issued its decision in United States v. Nixon, the Watergate tapes case, on July 24.

The Court does not meet continuously in formal sessions during its nine-month term. Instead, the Court divides its time into four separate but related activities. First, some time is allocated to reading through the thousands of petitions for review of cases that come annually to the Court. This time is not formally assigned but is available during the summer and during those periods when the Court is not sitting to hear cases. Second, the Court allocates blocks of time for oral arguments—the live discussion in which lawyers for both sides present their clients’ positions to the justices. From October through April, the justices meet in blocks of two consecutive weeks on Mondays, Tuesdays, and Wednesdays to hear oral arguments. These public sessions run from 10 am to 3 pm, with a one-hour lunch recess, giving the Court time to hear from lawyers in four cases each day.

During the weeks of oral arguments the Court sets aside its third allotment of time, for private discussions of how each justice will vote on the cases they have just heard. Time is also allowed for the justices to discuss which additional cases to hear. These private discussions are usually held on Wednesday afternoons and Fridays during the weeks of oral arguments. The justices set aside a fourth block of time to work on writing their opinions—the statements of what the justices have decided and their reasoning in the case. This writing period is usually in the weeks following each two weeks of oral argument.

The chief justice presides at the justices’ conferences and assigns a justice to write opinions. The chief justice also acts as spokesperson for the Court and for the federal judicial system, and supervises the Court’s budget and administrative staff. But in the central matter of hearing and deciding cases, the chief justice and the associate justices are equals.

For a major government institution, the Supreme Court has a relatively small staff of about 325 people. In 2005 Congress set the chief justice’s salary at $208,100, and the associate justices’ at $199,200.

The clerk of the Court serves as the Supreme Court’s chief administrative officer, supervising a staff of 30 under the guidance of the chief justice. The marshal of the Court supervises all building operations. The reporter of decisions oversees the printing and publication of the Court’s decisions. Other key personnel are the librarian and the public information officer. In addition, each justice is entitled to hire four law clerks, almost always recent top graduates of law schools, many of whom have served clerkships in a lower court the previous year.

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