Week 5- Constitutional: The Supreme Court

Directions: View the video below (rough transcript provided) and then take the 10-question quiz. There is no time limit and you may attempt the quiz up to two times. Your highest score will be recorded. 

Talking Points

• This week’s Weekly Constitution covers the Supreme Court, the highest court in the federal court system, and therefore the highest court in the United States. Together with the lower federal courts, it comprises the third branch of government, the judicial branch.

• The  Constitution requires that federal judges, including Supreme Court justices, be nominated by the president confirmed by the Senate. Usually only Supreme Court nominees make the news, and boy do they make the news.

• Presidents almost always nominate someone from their own political party, or those who share their political ideology.

• They usually defer to what it called a Litmus test -- a test of ideological purity used by recent presidents in nominating and by senators in confirming judges. So, for example, if a more conservative judge has always ruled in favor of limiting abortion rights, then a conservative president would consider that justice to have passed a litmus test.

• Please note that, during the confirmation process, nominees cannot be asked how they would rule in a specific case, but they can be asked about judicial philosophy. For example, during Supreme Court Justice Samuel Alito’s Senate Confirmation hearing, he was asked about abortion. While he didn’t explicitly state his views on abortion or the landmark case on abortion, Roe v. Wade, he did state that he believes in the judicial philosophy of stare decisis, which means to let a prior decision stand. In doing so, he signaled to the Senate Judiciary Committee that he was not looking to overturn Roe v. Wade.

• Let’s talk about the jurisdiction of Supreme Court. That is, the authority they have in certain legal realms.

• There are two types of jurisdiction: original and appellate. Original jurisdiction is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.

• The Supreme Court has original jurisdiction in cases involving ambassadors and other public ministers and counsels. It also has original jurisdiction in cases between states. For example, Texas is known for it’s “Don’t Mess with Texas” anti-littering ad campaign. Now let’s say Florida decided to run a “Don’t Mess with Florida” ad campaign. You like that? And Texas sued Florida for stealing their copyrighted motto... then the Supreme Court would have original jurisdiction in that case. Does that make sense? I know, I come up with the best examples.

• All other cases come up on appeal by writ of certiorari, whichare the largest part of the Supreme Court’s caseload. In general, the Supreme Court takes cases that pose a significant federal or constitutional question.

• The most important power of the Supreme Court is its power of Judicial Review. By the way, this power is not actually stated in the Constitution, but we all kind of agree that it is implied by it. Good enough. Anyways, judicial review  is the power of a court to review the constitutionality of a law.

• For example, let’s say that Congress passes a law that makes it illegal for anyone named Bob to run for office. And let’s say there’s this guy Bob...and that Bob wants to run for office. Bob is going to sue for his right to run for office. Now, let’s say, for the sake of this ridiculous example, that the lower courts rule against Bob, so Bob’s lawyers file a writ of certiorari and the Supreme Court agrees to hear his case. Chances are, the Supreme Court would rule that the anti-Bob law violates the equal protection clause of the 14th Amendment and is therefore unconstitutional. Boom! Judicial review!

• The power of judicial review has led to two different perspectives on the proper role of the Court: Judicial activism and judicial restraint.

• Judicial activism is a philosophy by which judges should make bold policy decisions. Supporters of judicial activism believe that the Court should correct injustices when other branches of government or states fail to act.

• Judicial restraint is the opposite philosophy, based on a belief that the judges should refrain from encroaching on the other branches of government. Supporters of judicial restraint belief that the Court should apply not “make law” by overturning laws passed by Congress or the states.

• So, how does this whole thing work? How do you get a case before the Supreme Court and, after that, what happens?

• Well, first you have to have standing. Let’s go back to our Bob example to understand the concept of judicial standing. Let’s say that I rightfully believed that the anti-Bob law was unfair. Well, that’s good a fine, but I can’t just go to the Courts because I don’t like a law. I have to have standing, or, in other words, I have to be able to demonstrate that the law inflicts personal harm upon me. It doesn’t. My name Emma and I can run for office if I want to. But let’s say Bob goes down to his Supervisor of Elections office to file paperwork to run for mayor and the office refuses to put him on the ballot because his name is Bob. Ah, now Bob has standing and Bob can sue. Get it?

• So his lawyers file suit with a district federal court. Bob loses the case. They appeal to a federal appellate court and lose again. So they file a writ of certiorari and the Supreme Court agrees to hear the case.

• Lawyers for each side submit briefs, which set forth the facts of the case, summarize the lower-court decision (if it is an appeals case), provide arguments for the side represented, and discuss any legal precedents on the issue.

• Then there are oral arguments. Each side technically has 30 minutes, but justices interrupt with questions, probably much less.

• Individual justices develop their opinions and decisions with the help of their clerks, who are usually recent graduates of top law schools. They draft opinions, which are then circulated among the justices.

• Then the Justices meet in what is known as a Friday Conference. They exchange ideas and arguments and take a vote. Remember, there are nine justices, so unless a Justice recuses him or herself from a case, they always achieve a majority.

• If the Chief Justice is in the majority, he or she writes the decision. Otherwise, he or she assigns another justice to write decision.

• There are four major types of opinions issued by the Court: If all 9 Justices agree, then a unanimous decisions is handed down. When that is not the case, then a majority and a minority decision is handed down. Also, we often see what are known as concurring opinions, which is when a Justice or group of Justices agrees with the majority, but for a different reason or set of reasons.

• Phew! That was a long one. That’s all for this week’s Weekly Constitutional. Good luck on your quiz.