The nature and role of the Supreme Court

The role of the Supreme Court outlined in Article III. As a constitutional court (rather than a criminal one) it is not trying to ascertain innocence or guilt. Instead it determines the acceptability (or otherwise) of actions within the rules of the Constitution.

'The judicial Power of the United States, shall be vested in one supreme Court'

The power of the supreme court comes from the constitution but it also come from itself: Judicial Review

'inferior Courts as the Congress may from time to time ordain and establish.'

Article III, Constitution of the United States of America

How the powers of the Supreme Court are established>

By the Constitution

Establishes a Supreme Court (Art. III Sec. 1)

  • · Extent of judicial power to all Cases in Law and Equity arising under the constitution' (Art.III Sec. 2). The Supreme Court cannot initiate cases but must wait for a constitutional dispute to arise.

  • · Life tenure for judges during 'good behaviour' (Art. III Sec. 1)

  • · Original jurisdiction – a case is tried at the Supreme Court and does not have to be heard first in a lower court, in cases such as those involving constitutional disputes between states and between federal government and the states (Art. III Sec. 2).

  • · Appellate jurisdiction – most cases must go to another court before being presented to the Supreme Court on appeal. The losing side in a lower court can appeal to the next court level until finally reaching the Supreme Court.

  • · The appointment process (Art. 2 Sec. 2) – all justices are nominated by the president and ratified by the Senate.

Implied by the Constitution

The power of judicial review is the central power of the Court, allowing it to overturn any other institution because the Court declares its actions to be unconstitutional. This power was acquired by the Court Marbury v Madison 1803 when it first overturned an Act of Congress. This power was further defined in Fletcher v Peck 1810 in which the Court overturned state law for the first time. Some argue that this power is apparent in the Constitution, as the Supreme Court is charged with upholding matters arising under the Constitution. However, others argue that the power of judicial review is not a legitimate power, as it is not awarded to the Supreme Court by the Constitution.

By Acts of Congress under constitutional authority

Congress has the power to:

· establish 'inferior courts' – Congress determined a series of federal courts with constitutional power. There are 13 circuit courts (or appeals courts) below the Supreme Court, the final court of appeal

determine the number of justices on the Court, which has long

been set at nine, originating from post-civil war legislation

How the Independence of the Court is protected

Judicial Independence In the UK

The principle of judicial independence in the USA has its origins in the UK and for the same reasons. Like the UK the US has a separate judiciary which is is independent from other political institutions. In the US this is even more important since it has the role of determining the constitutional acceptability of the laws and actions of president and Congress.

The separation of personnel means that no one in the executive or legislature—works closely with judges, so there is little chance of close connections or pressure. (By contrast, in the UK, the highest court, the Law Lords was until recently placed inside a legislative body, the House of Lords.)

The president cannot determine the appointment of justices alone, but instead nominates, then the Senate accepts or rejects, having the power to ratify. This could prevent the president appointing someone who will not act independently, because they have close connections to the president.

Justices are appointed for life, preventing a threat of removal. President or Congress cannot remove a justice (though if a justice has acted illegally, Congress can remove them through a supermajority). This gives justices the freedom to act regardless of the wishes of the president of the day.

The judicial compensation clause of Article III protects the pay of judges, Salary stating that their pay 'shall not be diminished during their continuance in office'.

How a case gets to the US Supreme Court

How judicial Review is conducted

Judicial Review UK

The Supreme Court cannot initiate a case. (which is an important limit on its power) Cases are presented to court by an individual or institution who feels that they have a case. The Supreme Court receives between 7000 and 8000 cases a year. These are 'requests for certiorari'. The court choses which cases to hear but only has the capacity to to hear around 100 cases per year. (This is another limit on its powers) The cases will have to meet the criteria of legal standing. In the 2015-16 term the court dealt with 80 cases. It requires the support of four justices for the court to hear a case.

During public hearings the Court conducts cases in a similar manner to a criminal court. There is a plaintiff and a defendant. Lawyers make arguments on either side, being given just 30 minutes to present their oral arguments. All nine justices usually hear a case; the justices can ask questions or make points during these hearings.

Once a case is heard, the Supreme Court discusses the case in private in order to reach a majority opinion of five or more. A justice in the majority is tasked with writing the opinion, (majority report) with input from other justices. There may be minority reports from justices who disagreed. The opinion of the court is a written document detailing how the Constitution has or has not been broken, at some length — for example, the Affordable Care Act ruling, NFIB v Sebelius, runs to 193 pages. These reports will be examined in great detail and the strength of their opinion will be discussed- a well argued opinion will stand the test of time, but a weak opinion with a well argued dissenting opinion might one day be overturned.

A majority opinion is an agreement by five or more members. It helps set precedent for future cases, particularly for political institutions, organisations and individuals. The Supreme Court could choose to have a narrow and limited impact, or a broad-ranging one, when writing their opinion. In split decisions, a minority opinion is also written.

In hearing a case, the Supreme Court has the power to declare that the actions or laws of other institutions are unconstitutional. This allows the court to overturn those actions or laws using the power of judicial review.

The power of the court

The status and influence of the court derives from the power it has over the constitution. This power — known as 'judicial review' — means that the court is able to decide whether congressional and state legislation, and the actions of the executive branch, are in accordance with the constitution; if they are not, the court can 'strike down' anything which it judges to be unconstitutional. Sometimes cases between individuals, such as Synder v Phelps, also have constitutional implications.

One reason the power of the court is controversial is that judicial review is not explicitly granted in the constitution, but was awarded by the court to itself in a case heard in 1803, Marbury v Madison. Chief Justice Marshall, who wrote the court's opinion, argued that a power to decide whether the other branches have contravened the constitution must be implicit in the nature of the constitution as higher law; if a law of Congress can contravene the constitution, then the constitution clearly cannot be higher law, and it loses its role as a statement of fundamental principles, and indeed its very purpose. If that point is conceded, then — since the constitution is law, and the constitution gives judges the role of interpreting the law — the judgement of whether the constitution has been contravened must belong with the judiciary.

This reasoning has not impressed critics, among them Thomas Jefferson, the third president and the principal author of the Declaration of Independence, who wrote in 1820 that to '...consider the judges as the ultimate arbiters of all constitutional questions is a very dangerous doctrine indeed'. However, given that the constitution does not provide any other procedure for resolving disputes over constitutionality, judicial review has survived.

Dissenting Opinions are letters to the future