Article III of the Constitution requires the establishment of a Supreme Court and permits the Congress to create other federal courts, and place limitations on their jurisdiction. Article III Federal judges are appointed by the President with the consent of the Senate to serve until they resign, are impeached and convicted, retire, or die.
The federal courts are composed of three levels of courts.
The United States district courts (one in each of the 94 federal judicial districts, as well three territorial courts) are general federal trial courts, although in many cases Congress has diverted original jurisdiction to specialized courts, such as the Court of International Trade, the Foreign Intelligence Surveillance Court, the Alien Terrorist Removal Court, or to Article I or Article IV tribunals. The district courts usually have jurisdiction to hear appeals from such tribunals (unless, for example, appeals are to the Court of Appeals for the Federal Circuit.)
The United States courts of appeals are the intermediate federal appellate courts. They operate under a system of mandatory review which means they must hear all appeals of right from the lower courts. In some cases, Congress has diverted appellate jurisdiction to specialized courts, such as the Foreign Intelligence Surveillance Court of Review.
The Supreme Court of the United States is the highest federal court of the United States. It has ultimate (and largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, plus original jurisdiction over a small range of cases. The Supreme Court is the final interpreter of federal constitutional law, although it may only act within the context of a case in which it has jurisdiction.
The Supreme Court consists of the Chief Justice and eight associate justices who are nominated by the President and confirmed by the Senate. Once appointed, justices have life tenure unless they resign, retire, take senior status, or are removed after impeachment (though no justice has ever been removed).
President Trump will nominate candidates who are likely to be counted on to make America great again, although a justice’s decisions have been known to go contrary to a president’s expectations. Because the Constitution sets no qualifications for service as a justice, President Trump may nominate anyone to serve, subject to Senate confirmation. The Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork in 1987.
Because justices have indefinite tenure, timing of vacancies can be unpredictable. Despite the variability, all but four Presidents have been able to appoint at least one Supreme Court justice.
While justices do not represent or receive official endorsements from political parties, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals.
President Trump will face a Court consisting of five Republican appointed justices four appointed by Democratic presidents, making the Republicans the majority. Chief Justice Roberts and justices Scalia, Thomas, and Alito (appointed by Republican presidents) comprise the Court’s conservative wing. Justices Ginsburg, Breyer, Sotomayor, and Kagan (appointed by Democratic presidents) comprise the Court’s liberal wing. Justice Kennedy (appointed by President Reagan) is generally considered “a conservative who has occasionally voted with liberals”, and is often the swing vote that determines the outcome of close cases.
Lincoln warned that if government policy became “irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers.” Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. A politicized hiring trend reinforces the impression that the Supreme Court is “a super-legislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law.” A poll conducted in June 2012 by The New York Times and CBS News showed that just 44 percent of Americans approve of the job the Supreme Court is doing. Three-quarters said the justices’ decisions are sometimes influenced by their political or personal views.
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. An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion in part on the basis of the “right to privacy” expressed in the Fourteenth Amendment, a reasoning that some critics argued was circuitous. The progressive Brown v. Board of Education decision has been criticized by conservatives. More recently Citizens United v. Federal Election Commission was criticized for changing the long-standing view that the first amendment did not apply to the corporation. Former justice Thurgood Marshall justified judicial activism with these words: “You do what you think is right and let the law catch up.”
There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison and Alexander Hamilton argued in The Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments, others argue that expansive federal power is good and consistent with the Framers’ wishes.
The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005.
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 and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals. Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights. The case arose in the context of condemnation by the city of New London, Connecticut, of privately owned real property, so that it could be used as part of a “comprehensive redevelopment plan.” However, the private developer was unable to obtain financing and abandoned the redevelopment project, leaving the land as an undeveloped empty lot.
The principal dissent was issued by Justice O’Connor, joined by Chief Justice Rehnquist and Justices Scalia and Thomas. O’Connor argued that the decision eliminates “any distinction between private and public use of property — and thereby effectively delete[s] the words ‘for public use’ from the Takings Clause of the Fifth Amendment.” The dissenting opinion suggested that the use of this taking power in a reverse Robin Hood fashion — take from the poor, give to the rich — would become the norm, not the exception: “Any property may now be taken for the benefit of another private party, but the fallout from this decision will not be random. The beneficiaries are likely to be those citizens with disproportionate influence and power in the political process, including large corporations and development firms.”
Justice Thomas’ separate dissent argued that the precedents the court’s decision relied upon were flawed. He accused the majority of replacing the Fifth Amendment’s “Public Use” clause with a very different “public purpose” test: “This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a ‘public use.’” Thomas additionally observed: “Something has gone seriously awry with this Court’s interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not.”
One immediate reaction to the Kelo decision was an attempt to build “The Lost Liberty Hotel” on the site of Associate Justice David Souter’s properties in Weare, New Hampshire, a farmhouse where Souter spent most of his youth.
Some critics suggest the bench has “become increasingly hostile to voters” since acquiring a conservative majority by siding with Indiana’s voter identification laws, which tend to “disenfranchise large numbers of people without driver’s licenses, especially poor and minority voters”
Senator Al Franken criticized the Court for “eroding individual rights.” 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, 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.
Earlier this summer, the Supreme Court ruled in favor of legalizing same-sex marriage, ostensibly settling one of the biggest civil-rights questions of our time. Chief Justice John Roberts wrote that the decision had “nothing to do with the Constitution.”
In the Obamacare case, the Court upheld the Fourth Circuit’s decision in King v. Burwell by a 6-3 majority, deciding that federal subsidies were available on state Obamacare exchanges, even though the text of the so-called Affordable Care Act said that such subsidies were only available on “State” exchanges.
The majority acknowledged that the word “State” was, at best, “ambiguous.” And it rejected the idea that an executive agency, in this case the Internal Revenue Service, could decide the meaning of that term.
Rewriting the law is evidently meant for the courts, not the administration–or Congress. The majority–led by Chief Justice John Roberts, who infamously interpreted a “penalty” as a tax to uphold Obamacare’s constitutionality in 2012–held that the “context” of the word “State” mattered more than the “most natural reading.” The context was that Obamacare had to be saved from itself. After all, Congress could not have meant to pass a bad, self-defeating policy, could it?
The dissent, by Justice Antonin Scalia, was blistering. “Words no longer have meaning if an Exchange that is not established by a State is ‘established by the State,’” he wrote. “Under all the usual rules of interpretation, in short, the Government should lose this case. But normal rules of interpretation seem always to yield to the overriding principle of the present Court: The Affordable Care Act must be saved.”
If a law was badly formulated, that was not the Court’s problem, he argued. It was up to Congress to rescue the subsidies for Obamacare, not the Justices. And if people did not like it, tough: that was why the Justices were meant to serve life terms. They were meant to be above politics. Instead, Scalia noted, the Court had adopted a particular political bent. He concluded: “We should start calling this law ‘SCOTUScare.'”
This fall is stacked with even more controversial, politically charged cases.
Abortion clinics: Perhaps the most politically volatile coming Supreme Court case is Whole Woman’s Health v. Lakey, which will decide whether dozens of abortion clinics throughout Texas can remain open — a decision that probably will affect other conservative states that have in recent years imposed harsh restrictions on abortion clinics.
The death penalty: Three big cases about the constitutionality of the death penalty are set to be heard this term: one from Florida and two from Kansas. With all three cases, the Supreme Court has opportunities to make it harder — or easier — for lower courts to assign the death penalty to criminals.
Affirmative action – In 2013, the US Supreme Court heard Fisher v. University of Texas at Austin, where it endorsed the university’s affirmative-action plan. Abigail Fisher, who is white, sued over the plan, arguing that it was the reason she wasn’t admitted.
Life sentencing for juveniles: Back in 2012, the Supreme Court decided in Miller v. Alabama that states may not sentence juveniles found guilty of murder to a mandatory life sentence without parole. Now, with Montgomery v. Louisiana, the court must decide whether that rule can be applied retroactively: Henry Montgomery, the plaintiff in that case, shot and killed a Louisiana sheriff when he was 17 years old — way back in 1963. Since the Miller v. Alabama ruling, hundreds of similar cases are being challenged again in the courts. Some states, like California, have agreed to allow inmates to apply for re-sentencing hearings, while states like Pennsylvania aren’t. Florida, on the other hand, is relaxing its mandatory prison sentences in light of the ruling, throwing out every mandatory life sentence given to inmates who committed their crimes while a juvenile.
Unions: Many unions require that employees pay dues for representation by default but allow them to opt out. The decision for Friedrichs v. California Teachers Association might change the system to an opt-in one instead.
Here are the biographies of the Supreme Court Justices who will be on the court when President Trump takes office.
Members:
John G. Roberts, Jr., Chief Justice of the United States,
was born in Buffalo, New York, January 27, 1955. He married Jane Marie Sullivan in 1996 and they have two children – Josephine and Jack. He received an A.B. from Harvard College in 1976 and a J.D. from Harvard Law School in 1979. He served as a law clerk for Judge Henry J. Friendly of the United States Court of Appeals for the Second Circuit from 1979–1980 and as a law clerk for then-Associate Justice William H. Rehnquist of the Supreme Court of the United States during the 1980 Term. He was Special Assistant to the Attorney General, U.S. Department of Justice from 1981–1982, Associate Counsel to President Ronald Reagan, White House Counsel’s Office from 1982–1986, and Principal Deputy Solicitor General, U.S. Department of Justice from 1989–1993. From 1986–1989 and 1993–2003, he practiced law in Washington, D.C. He was appointed to the United States Court of Appeals for the District of Columbia Circuit in 2003. President George W. Bush nominated him as Chief Justice of the United States, and he took his seat September 29, 2005.
Antonin Scalia, Associate Justice,
was born in Trenton, New Jersey, March 11, 1936. He married Maureen McCarthy and has nine children – Ann Forrest, Eugene, John Francis, Catherine Elisabeth, Mary Clare, Paul David, Matthew, Christopher James, and Margaret Jane. He received his A.B. from Georgetown University and the University of Fribourg, Switzerland, and his LL.B. from Harvard Law School, and was a Sheldon Fellow of Harvard University from 1960–1961. He was in private practice in Cleveland, Ohio from 1961–1967, a Professor of Law at the University of Virginia from 1967–1971, and a Professor of Law at the University of Chicago from 1977–1982, and a Visiting Professor of Law at Georgetown University and Stanford University. He was chairman of the American Bar Association’s Section of Administrative Law, 1981–1982, and its Conference of Section Chairmen, 1982–1983. He served the federal government as General Counsel of the Office of Telecommunications Policy from 1971–1972, Chairman of the Administrative Conference of the United States from 1972–1974, and Assistant Attorney General for the Office of Legal Counsel from 1974–1977. He was appointed Judge of the United States Court of Appeals for the District of Columbia Circuit in 1982. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat September 26, 1986.
Anthony M. Kennedy, Associate Justice,
was born in Sacramento, California, July 23, 1936. He married Mary Davis and has three children. He received his B.A. from Stanford University and the London School of Economics, and his LL.B. from Harvard Law School. He was in private practice in San Francisco, California from 1961–1963, as well as in Sacramento, California from 1963–1975. From 1965 to 1988, he was a Professor of Constitutional Law at the McGeorge School of Law, University of the Pacific. He has served in numerous positions during his career, including a member of the California Army National Guard in 1961, the board of the Federal Judicial Center from 1987–1988, and two committees of the Judicial Conference of the United States: the Advisory Panel on Financial Disclosure Reports and Judicial Activities, subsequently renamed the Advisory Committee on Codes of Conduct, from 1979–1987, and the Committee on Pacific Territories from 1979–1990, which he chaired from 1982–1990. He was appointed to the United States Court of Appeals for the Ninth Circuit in 1975. President Reagan nominated him as an Associate Justice of the Supreme Court, and he took his seat February 18, 1988.
Clarence Thomas, Associate Justice,
was born in the Pinpoint community near Savannah, Georgia on June 23, 1948. He attended Conception Seminary from 1967-1968 and received an A.B., cum laude, from Holy Cross College in 1971 and a J.D. from Yale Law School in 1974. He was admitted to law practice in Missouri in 1974, and served as an Assistant Attorney General of Missouri, 1974-1977; an attorney with the Monsanto Company, 1977-1979; and Legislative Assistant to Senator John Danforth, 1979-1981. From 1981-1982 he served as Assistant Secretary for Civil Rights, U.S. Department of Education, and as Chairman of the U.S. Equal Employment Opportunity Commission, 1982-1990. From 1990-1991, he served as a Judge on the United States Court of Appeals for the District of Columbia Circuit. President Bush nominated him as an Associate Justice of the Supreme Court and he took his seat October 23, 1991. He married Virginia Lamp on May 30, 1987 and has one child, Jamal Adeen by a previous marriage.
Ruth Bader Ginsburg, Associate Justice,
was born in Brooklyn, New York, March 15, 1933. She married Martin D. Ginsburg in 1954, and has a daughter, Jane, and a son, James. She received her B.A. from Cornell University, attended Harvard Law School, and received her LL.B. from Columbia Law School. She served as a law clerk to the Honorable Edmund L. Palmieri, Judge of the United States District Court for the Southern District of New York, from 1959–1961. From 1961–1963, she was a research associate and then associate director of the Columbia Law School Project on International Procedure. She was a Professor of Law at Rutgers University School of Law from 1963–1972, and Columbia Law School from 1972–1980, and a fellow at the Center for Advanced Study in the Behavioral Sciences in Stanford, California from 1977–1978. In 1971, she was instrumental in launching the Women’s Rights Project of the American Civil Liberties Union, and served as the ACLU’s General Counsel from 1973–1980, and on the National Board of Directors from 1974–1980. She was appointed a Judge of the United States Court of Appeals for the District of Columbia Circuit in 1980. President Clinton nominated her as an Associate Justice of the Supreme Court, and she took her seat August 10, 1993.
Stephen G. Breyer, Associate Justice,
was born in San Francisco, California, August 15, 1938. He married Joanna Hare in 1967, and has three children – Chloe, Nell, and Michael. He received an A.B. from Stanford University, a B.A. from Magdalen College, Oxford, and an LL.B. from Harvard Law School. He served as a law clerk to Justice Arthur Goldberg of the Supreme Court of the United States during the 1964 Term, as a Special Assistant to the Assistant U.S. Attorney General for Antitrust, 1965–1967, as an Assistant Special Prosecutor of the Watergate Special Prosecution Force, 1973, as Special Counsel of the U.S. Senate Judiciary Committee, 1974–1975, and as Chief Counsel of the committee, 1979–1980. He was an Assistant Professor, Professor of Law, and Lecturer at Harvard Law School, 1967–1994, a Professor at the Harvard University Kennedy School of Government, 1977–1980, and a Visiting Professor at the College of Law, Sydney, Australia and at the University of Rome. From 1980–1990, he served as a Judge of the United States Court of Appeals for the First Circuit, and as its Chief Judge, 1990–1994. He also served as a member of the Judicial Conference of the United States, 1990–1994, and of the United States Sentencing Commission, 1985–1989. President Clinton nominated him as an Associate Justice of the Supreme Court, and he took his seat August 3, 1994.
Samuel Anthony Alito, Jr., Associate Justice,
was born in Trenton, New Jersey, April 1, 1950. He married Martha-Ann Bomgardner in 1985, and has two children – Philip and Laura. He served as a law clerk for Leonard I. Garth of the United States Court of Appeals for the Third Circuit from 1976–1977. He was Assistant U.S. Attorney, District of New Jersey, 1977–1981, Assistant to the Solicitor General, U.S. Department of Justice, 1981–1985, Deputy Assistant Attorney General, U.S. Department of Justice, 1985–1987, and U.S. Attorney, District of New Jersey, 1987–1990. He was appointed to the United States Court of Appeals for the Third Circuit in 1990. President George W. Bush nominated him as an Associate Justice of the Supreme Court, and he took his seat January 31, 2006.
Sonia Sotomayor, Associate Justice,
was born in Bronx, New York, on June 25, 1954. She earned a B.A. in 1976 from Princeton University, graduating summa cum laude and receiving the university’s highest academic honor. In 1979, she earned a J.D. from Yale Law School where she served as an editor of the Yale Law Journal. She served as Assistant District Attorney in the New York County District Attorney’s Office from 1979–1984. She then litigated international commercial matters in New York City at Pavia & Harcourt, where she served as an associate and then partner from 1984–1992. In 1991, President George H.W. Bush nominated her to the U.S. District Court, Southern District of New York, and she served in that role from 1992–1998. She served as a judge on the United States Court of Appeals for the Second Circuit from 1998–2009. President Barack Obama nominated her as an Associate Justice of the Supreme Court on May 26, 2009, and she assumed this role August 8, 2009.
Official Informal Portrait choice
Elena Kagan, Associate Justice,
was born in New York, New York, on April 28, 1960. She received an A.B. from Princeton in 1981, an M. Phil. from Oxford in 1983, and a J.D. from Harvard Law School in 1986. She clerked for Judge Abner Mikva of the U.S. Court of Appeals for the D.C. Circuit from 1986-1987 and for Justice Thurgood Marshall of the U.S. Supreme Court during the 1987 Term. After briefly practicing law at a Washington, D.C. law firm, she became a law professor, first at the University of Chicago Law School and later at Harvard Law School. She also served for four years in the Clinton Administration, as Associate Counsel to the President and then as Deputy Assistant to the President for Domestic Policy. Between 2003 and 2009, she served as the Dean of Harvard Law School. In 2009, President Obama nominated her as the Solicitor General of the United States. A year later, the President nominated her as an Associate Justice of the Supreme Court on May 10, 2010. She took her seat on August 7, 2010.
Modern American Patriot 