Supreme Court of the United States

Supreme Court of the United States
Established	1789-03-04
Abbreviation	SCOTUS
Location	Washington, D.C., USA
Composition method	Presidential nomination with Senate confirmation
Authorized by	Constitution of the United States
Judge term length	Life tenure
Number of positions	9 (by statute)
Chief Justice	John Roberts, since 2005-09-29
Associate Justices	Samuel Alito Amy Coney Barrett Stephen Breyer Neil Gorsuch Elena Kagan Brett Kavanaugh Sonia Sotomayor Clarence Thomas
Retired justices	Anthony Kennedy Sandra Day O'Connor David Souter
Lists of Justices	All Justices Chief Justices Associate Justices
Website	SupremeCourt.gov

Background

The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States of America. It has ultimate and largely discretionary   appellate jurisdiction over all federal and state court cases that involve a point of federal law, and original jurisdiction over a narrow range of cases, specifically "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." The Court holds the power of judicial review, the ability to invalidate a statute for violating a provision of the Constitution of the United States. It is also able to strike down presidential directives for violating either the Constitution or statutory law. However, it may act only within the context of a case in an area of law over which it has jurisdiction. The Court may decide cases having political overtones but has ruled that it does not have power to decide non-justiciable political questions.

Established by Article Three of the United States Constitution, the composition and procedures of the Supreme Court were initially established by the 1st Congress through the Judiciary Act of 1789. As later set by the Judiciary Act of 1869, the Court consists of the Chief Justice of the United States and eight associate justices. Each justice has lifetime tenure, meaning they remain on the Court until they resign, retire, die, or are removed from office. When a vacancy occurs, the president, with the advice and consent of the United States Senate, appoints a new justice. Each justice has a single vote in deciding the cases argued before the Court. When in majority, the chief justice decides who writes the opinion of the court; otherwise, the most senior justice in the majority assigns the task of writing the opinion.

The Court meets in the U.S. Supreme Court Building in Washington, D.C. Its law enforcement arm is the Supreme Court Police.

History

It was while debating the separation of powers between the legislative and executive departments that delegates to the 1787 Constitutional Convention established the parameters for the national judiciary. Creating a "third branch" of government was a novel idea; in the English tradition, judicial matters had been treated as an aspect of royal (executive) authority. Early on, the delegates who were opposed to having a strong central government argued that national laws could be enforced by state courts, while others, including James Madison, advocated for a national judicial authority consisting of various tribunals chosen by the national legislature. It was also proposed that the judiciary should have a role in checking the executive's power to veto or revise laws. In the end, the framers compromised by sketching only a general outline of the judiciary, vesting federal judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." They delineated neither the exact powers and prerogatives of the Supreme Court nor the organization of the judicial branch as a whole.

The 1st United States Congress provided the detailed organization of a federal judiciary through the Judiciary Act of 1789. The Supreme Court, the country's highest judicial tribunal, was to sit in the nation's Capital and would initially be composed of a chief justice and five associate justices. The act also divided the country into judicial districts, which were in turn organized into circuits. Justices were required to "ride circuit" and hold circuit court twice a year in their assigned judicial district.

Immediately after signing the act into law, President George Washington nominated the following people to serve on the court: John Jay for chief justice and John Rutledge,   William Cushing,   Robert H. Harrison,   James Wilson, and John Blair Jr. as associate justices. All six were confirmed by the Senate on September 26, 1789; however, Harrison declined to serve, and Washington later nominated James Iredell in his place.

The Supreme Court held its inaugural session from February 2 through February 10, 1790, at the Royal Exchange in New York City, then the U.S. capital. A second session was held there in August 1790. The earliest sessions of the court were devoted to organizational proceedings, as the first cases did not reach it until 1791. When the nation's capital was moved to Philadelphia in 1790, the Supreme Court did so as well. After initially meeting at Independence Hall, the Court established its chambers at City Hall.

Earliest Beginnings Through Marshall

Under Chief Justices Jay, Rutledge, and Ellsworth (1789-1801), the Court heard few cases; its first decision was West v. Barnes (1791), a case involving procedure. As the Court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two). However, Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789. The court lacked a home of its own and had little prestige, a situation not helped by the era's highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.

The court's power and prestige grew substantially during the Marshall Court (1801-1835). Under Marshall, the court established the power of judicial review over acts of Congress, including specifying itself as the supreme expositor of the Constitution   (Marbury v. Madison) and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee,   McCulloch v. Maryland, and Gibbons v. Ogden.

The Marshall Court also ended the practice of each justice issuing his opinion seriatim, a remnant of British tradition, and instead issuing a single majority opinion. Also during Marshall's tenure, although beyond the Court's control, the impeachment and acquittal of Justice Samuel Chase from 1804-1805 helped cement the principle of judicial independence.

From Taney to Taft

The Taney Court (1836-1864) made several important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects. Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford, which helped precipitate the American Civil War. In the Reconstruction era, the Chase,   Waite,   and Fuller Courts (1864-1910) interpreted the new Civil War amendments to the Constitution and developed the doctrine of substantive due process  (Lochner v. New York;  Adair v. United States).

Under the White and Taft Courts (1910-1930), the Court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states (Gitlow v. New York), grappled with the new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the constitutionality of military conscription  (Selective Draft Law Cases), and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).

New Deal Era

During the Hughes,   Stone,   and Vinson Courts (1930-1953), the Court gained its own accommodation in 1935 and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin D. Roosevelt's   New Deal (most prominently West Coast Hotel Co. v. Parrish,   Wickard v. Filburn,   United States v. Darby, and United States v. Butler). During World War II, the Court continued to favor government power, upholding the internment of Japanese citizens (Korematsu v. United States) and the mandatory pledge of allegiance (Minersville School District v. Gobitis). Nevertheless, Gobitis was soon repudiated (West Virginia State Board of Education v. Barnette), and the Steel Seizure Case restricted the pro-government trend.

The Warren Court (1953-1969) dramatically expanded the force of Constitutional civil liberties. It held that segregation in public schools violates the Equal Protection Clause of the Fourteenth Amendment  (Brown v. Board of Education,   Bolling v. Sharpe, and Green v. County School Board) and that legislative districts must be roughly equal in population (Reynolds v. Sims). It created a general right to privacy  (Griswold v. Connecticut), limited the role of religion in public school, most prominently Engel v. Vitale and Abington School District v. Schempp,   incorporated most guarantees of the Bill of Rights against the states, prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright  (right to appointed counsel), and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona). At the same time, the Court limited defamation suits by public figures (New York Times Co. v. Sullivan) and supplied the government with an unbroken run of antitrust victories.

Burger, Rehnquist, and Roberts

The Burger Court (1969-1986) marked a conservative shift. It also expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade) but divided deeply on affirmative action  (Regents of the University of California v. Bakke) and campaign finance regulation (Buckley v. Valeo). It also wavered on the death penalty, ruling first that most applications were defective (Furman v. Georgia), but later that the death penalty itself was not unconstitutional (Gregg v. Georgia).

The Rehnquist Court (1986-2005) was noted for its revival of judicial enforcement of federalism, emphasizing the limits of the Constitution's affirmative grants of power (United States v. Lopez) and the force of its restrictions on those powers (Seminole Tribe v. Florida,   City of Boerne v. Flores). It struck down single-sex state schools as a violation of equal protection (United States v. Virginia), laws against sodomy as violations of substantive due process (Lawrence v. Texas) and the line item veto  (Clinton v. New York) but upheld school vouchers  (Zelman v. Simmons-Harris) and reaffirmed Roe's restrictions on abortion laws (Planned Parenthood v. Casey). The Court's decision in Bush v. Gore, which ended the electoral recount during the 2000 United States presidential election, was especially controversial.

The Roberts Court (2005-present) is regarded as more conservative than the Rehnquist Court. Some of its major rulings have concerned federal preemption  (Wyeth v. Levine), civil procedure (Twombly-Iqbal : Bell Atlantic Corp. v. Twombly;  Ashcroft v. Iqbal), voting rights and federal preclearence (Shelby County-Brnovich),   abortion  (Gonzales v. Carhart),   climate change  (Massachusetts v. EPA),  same-sex marriage  (United States v. Windsor, and Obergefell v. Hodges), and the Bill of Rights, notably in Citizens United v. Federal Election Commission and Americans for Prosperity Foundation v. Bonta (First Amendment), Heller-McDonald (District of Columbia v. Heller;    McDonald v. Chicago;   Second Amendment), and Baze v. Rees  (Eighth Amendment).

Americans for Prosperity Foundation v. Bonta

Americans for Prosperity Foundation v. Bonta was a United States Supreme Court case dealing with the disclosure of donors to nonprofit organizations. The case challenges California's requirement that requires nonprofit organizations to disclose the identity of their donors in the state tax returns. The case was consolidated with Thomas More Law Center v. Bonta. In July 2021, the Supreme Court ruled in a 6-3 decision that California's requirement burdened the donors' First Amendment rights and was not narrowly tailored, and thus invalid.

Americans for Prosperity Foundation v. Bonta: Supreme Court

...

In amicus briefs prior to the Court's certification, several other nonprofits wrote to support the petitioners' case, concerned that upholding the Ninth Circuit's decision would endanger disclosure of classified information such as the Terrorist Screening Database and would hamper law enforcement. Those in support of California, including Democratic Party Senators, saw that upholding the Ninth Circuit decision was necessary as to undo the increased use of political "dark money" donated through nonprofits that had been made legal through the Court's decision in Citizens United v. Federal Election Commission in 2010.

The Court certified both cases in January 2021, consolidating them under Americans for Prosperity's petition. Prior to oral arguments, several groups petitions for Justice Amy Coney Barrett to recuse herself from the case, as Americans for Prosperity had spent significant funds for a ad campaign to promote her as the replacement justice for Justice Ruth Bader Ginsburg. Barrett refused to recuse herself without comment.

Oral arguments were heard on April 26, 2021. Observers to the Court believed that the Court sided with the nonprofits and will likely strike down the California requirement based on the oral arguments. Conservative members of the court Justices Clarence Thomas and Samuel Alito sided with the nonprofits arguments that their freedom of association was likely violated by the Schedule B requirement.

The Court issued its decision on July 1, 2021. The 6-3 decision reversed the Ninth Circuit's ruling and remanded the case for review. The majority opinion, written by Chief Justice John Roberts and joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch,   Brett Kavanaugh, and Amy Coney Barrett, ruled that California's regulation placed too much burden on donors that violated their First Amendment rights and did not serve a narrowly-tailored government interest, and thus was invalid. Roberts wrote "The upshot is that California casts a dragnet for sensitive donor information from tens of thousands of charities each year, even though that information will become relevant in only a small number of cases involving filed complaints."

Justice Sonia Sotomayor wrote the dissent which was joined by Justices Stephen Breyer and Elena Kagan. Sotomayor wrote the majority decision would open up more anonymous money into political donations, and that their evaluation of California's regulation "trades precision for blunt force" and creates a "significant risk that it will topple disclosure regimes that should be constitutional."

Composition

Nomination, Confirmation, and Appointment

Article II, Section 2, Clause 2 of the Constitution of the United States, known as the Appointments Clause, empowers the president of the United States to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court of the United States. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.

Flowchart showing process of appointment of United States Supreme Court justices.  [Click image to open full-size.  |  Source]

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955. Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.

Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican Party and Democratic Party senators concerned with Fortas' ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority's prior refusal to take up President Barack Obama's   nomination of Merrick Garland to fill the vacancy. This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred most recently with President George W. Bush's nomination of Harriet Miers in 2005. The Senate may also fail to act on a nomination, which expires at the end of the session. President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, the Senate failed to act on the March 2016 nomination of Merrick Garland, as the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump.

Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the new justice can take office. The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date. The importance of commissioning is underscored by the case of Edwin M. Stanton. Although appointed to the court on December 19, 1869, by President Ulysses S. Grant and confirmed by the Senate a few days later, Stanton died on December 24, prior to receiving his commission. He is not, therefore, considered to have been an actual member of the court.

Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration to the present, the process has taken much longer and some believe this is because Congress sees justices as playing a more political role than in the past. According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (2.3 months).

Recess Appointments

When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.

No U.S. president since Dwight D. Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts. In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the Court should only be made in "unusual circumstances"; such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.

The Supreme Court's 2014 decision in National Labor Relations Board v. Noel Canning limited the ability of the President to make recess appointments (including appointments to the Supreme Court); the Court ruled that the Senate decides when the Senate is in session or in recess. Writing for the Court, Justice Breyer stated, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business." This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions.

Tenure

The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign, or retire. Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805). Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969), but they did not reach a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.

Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis F. Powell Jr. and William Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations, such as the eleven years between Stephen Breyer's nomination in 1994 to succeed Harry Blackmun and the nomination of John Roberts in 2005 to fill the seat of Sandra Day O'Connor (though Roberts' nomination was withdrawn and resubmitted for the role of chief justice after Rehnquist died).

Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, although his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the court.   Jimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.

Size of the Court

Article III of the Constitution sets neither the size of the Supreme Court nor any specific positions on it (though the existence of the office of the chief justice is tacitly acknowledged in Article I, Section 3, Clause 6). Instead, these powers have typically been entrusted to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through the Judiciary Act of 1789. The size of the Court was first altered by an 1801 act (Midnight Judges Act) which would have reduced the size of the court to five members upon its next vacancy, but an 1802 act promptly negated the 1801 act, legally restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew across the continent and as Supreme Court justices in those days had to ride the circuit, an arduous process requiring long travel on horseback or carriage over harsh terrain that resulted in months-long extended stays away from home, Congress added justices to correspond with the growth: seven in 1807,   nine in 1837, and ten in 1863.

In 1866, at the behest of Chief Justice Chase and in an attempt to limit the power of Andrew Johnson, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, the Circuit Judges Act returned the number of justices to nine, where it has since remained.

President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned the appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to "pack" the Court with justices who would support Roosevelt's New Deal. The plan, usually called the "court-packing plan," failed in Congress after members of Roosevelt's own Democratic Party believed it to be unconstitutional, it was defeated 70-20 in the United States Senate and the Senate Judiciary Committee reported that it was "essential to the continuance of our constitutional democracy" that the proposal "be so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America." It remains unclear whether it would be at all constitutional or not to expand the size of the Supreme Court in ways understood to be designed to "pack" it with justices that would rule more favorably on a President's agenda or to simply change the ideological composition of the court.

Membership

Current Justices [2021-08]

There are currently nine justices on the Supreme Court: Chief Justice John Roberts and eight associate justices. Among the current members of the Court, Clarence ThomasC is the longest-serving justice, with a tenure of 10,878 days (29 years, 285 days) as of August 4, 2021; the most recent justice to join the court is Amy Coney Barrett, whose tenure began on October 27, 2020.

Current justices of the Supreme Court
Justice / birthdate and place		Appointed by	SCV	Age at		Start date / length of service	Previous position or office (most recent prior to joining the Court)	Succeeded
				Start	Present
	John Roberts January 27, 1955 Buffalo, New York	G. W. Bush	78-22	50	66	September 29, 2005	Judge of the United States Court of Appeals for the District of Columbia Circuit (2003-2005)	Rehnquist
	Clarence Thomas June 23, 1948 Pin Point, Georgia	G. H. W. Bush	52-48	43	73	October 23, 1991	Judge of the United States Court of Appeals for the District of Columbia Circuit (1990-1991)	Marshall
	Stephen Breyer August 15, 1938 San Francisco, California	Clinton	87-9	55	82	August 3, 1994	Chief Judge of the United States Court of Appeals for the First Circuit (1990-1994)	Blackmun
	Samuel Alito April 1, 1950 Trenton, New Jersey	G. W. Bush	58-42	55	71	January 31, 2006	Judge of the United States Court of Appeals for the Third Circuit (1990-2006)	O'Connor
	Sonia Sotomayor June 25, 1954 The Bronx, New York	Obama	68-31	55	67	August 8, 2009	Judge of the United States Court of Appeals for the Second Circuit (1998-2009)	Souter
	Elena Kagan April 28, 1960 Manhattan, New York	Obama	63-37	50	61	August 7, 2010	Solicitor General of the United States (2009-2010)	Stevens
	Neil Gorsuch August 29, 1967 Denver, Colorado	Trump	54-45	49	53	April 10, 2017	Judge of the United States Court of Appeals for the Tenth Circuit (2006-2017)	Scalia
	Brett Kavanaugh February 12, 1965 Washington, D.C.	Trump	50-48	53	56	October 6, 2018	Judge of the United States Court of Appeals for the District of Columbia Circuit (2006-2018)	Kennedy
	Amy Coney Barrett January 28, 1972 New Orleans, Louisiana	Trump	52-48	48	49	October 27, 2020	Judge of the United States Court of Appeals for the Seventh Circuit (2017-2020)	Ginsburg

Length of Tenure

This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority) on the Court.

SCOTUS: length of tenure  [Source]

Court Demographics

The Court currently has six male and three female justices. Among the nine justices, there is one African-American justice (Justice Clarence Thomas) and one Hispanic justice (Justice Sotomayor). One of the justices was born to at least one immigrant parent: Justice Alito's father was born in Italy.

At least six justices are Roman Catholics and two are Jewish. It is unclear whether Neil Gorsuch considers himself a Catholic or an Episcopalian. Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists. The first Catholic justice was Roger Taney in 1836, and 1916 saw the appointment of the first Jewish justice, Louis Brandeis. In recent years the historical situation has reversed, as most recent justices have been either Catholic or Jewish.

All current justices, except for Amy Coney Barrett, have Ivy League backgrounds as either undergraduates or law students. Barrett received her bachelor's degree at Rhodes College and her law degree at the University of Notre Dame. Three justices are from the state of New York, and one each is from California, New Jersey, Georgia, Colorado, Louisiana and Washington, D.C.

For much of the Court's history, every justice was a man of Northwestern European descent, and almost always Protestant. Diversity concerns focused on geography, to represent all regions of the country, rather than religious, ethnic, or gender diversity. Racial, ethnic, and gender diversity in the Court increased in the late 20th century. Thurgood Marshall became the first African-American justice in 1967. Sandra Day O'Connor became the first female justice in 1981. In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991. O'Connor was joined by Ruth Bader Ginsburg in 1993. After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice, and in 2010 by Elena Kagan. After Ginsburg's death on September 18, 2020, Amy Coney Barrett was confirmed as the fifth woman in the Court's history on October 26, 2020.

There have been six foreign-born justices in the Court's history: James Wilson (1789-1798), born in Caskardy, Scotland; James Iredell (1790-1799), born in Lewes, England; William Paterson (1793-1806), born in County Antrim, Ireland; David Brewer (1889-1910), born to American missionaries in Smyrna, Ottoman Empire (now Izmir, Turkey); George Sutherland (1922-1939), born in Buckinghamshire, England; and Felix Frankfurter (1939-1962), born in Vienna, Austria-Hungary (now in Austria).

Retired Justices

There are currently three living retired justices of the Supreme Court of the United States: Sandra Day O'Connor, Anthony Kennedy, and David Souter. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the chief justice, on request of the chief judge of the lower court and with the consent of the retired justice. In recent years, Justice O'Connor has sat with several Courts of Appeals around the country, and Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court. The status of a retired justice is analogous to that of a circuit or district court judge who has taken senior status, and eligibility of a Supreme Court justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.

In recent times, justices tend to strategically plan their decisions to leave the bench with personal, institutional, ideological, partisan and sometimes even political factors playing a role. The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a philosophically compatible president holding office, to ensure that a like-minded successor would be appointed.

Retired justices of the Supreme Court
Justice Birthdate and place		Appointed by	Retired under	Age at			Tenure
				Start	Retirement	Present	Start date	End date	Length
	Sandra Day O'Connor March 26, 1930 El Paso, Texas	Reagan	G. W. Bush	51	75	91	September 25, 1981	January 31, 2006	24 years, 128 days
	Anthony Kennedy July 23, 1936 Sacramento, California	Reagan	Trump	51	82	85	February 18, 1988	July 31, 2018	30 years, 163 days
	David Souter September 17, 1939 Melrose, Massachusetts	G.H.W. Bush	Obama	51	69	81	October 9, 1990	June 29, 2009	18 years, 263 days

Seniority and Seating

For the most part, the day-to-day activities of the justices are governed by rules of protocol based upon the seniority of justices. The chief justice always ranks first in the order of precedence - regardless of the length of their service. The associate justices are then ranked by the length of their service. The chief justice sits in the center on the bench, or at the head of the table during conferences. The other justices are seated in order of seniority. The senior-most associate justice sits immediately to the chief justice's right; the second most senior sits immediately to their left. The seats alternate right to left in order of seniority, with the most junior justice occupying the last seat. Therefore, starting in the middle of the October 2020 term, the court will sit as follows from left to right, from the perspective of those facing the Court: Kavanaugh, Kagan, Alito, Clarence Thomas (most senior associate justice), Roberts (chief justice), Breyer, Sotomayor, Gorsuch, and Barrett. Likewise, when the members of the Court gather for official group photographs, justices are arranged in order of seniority, with the five most senior members seated in the front row in the same order as they would sit during Court sessions, and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions.

In the justices' private conferences, current practice is for them to speak and vote in order of seniority, beginning with the chief justice first and ending with the most junior associate justice. By custom, the most junior associate justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving beverages and transmitting orders of the court to the clerk. Justice Joseph Story served the longest as junior justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows very closely behind serving from August 3, 1994, to January 31, 2006, for a total of 4,199 days. Justice Elena Kagan comes in at a distant third serving from August 6, 2010, to April 10, 2017, for a total of 2,439 days.

Salary

As of 2018, associate justices receive a yearly salary of $255,300 and the chief justice is paid $267,000 per year. Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement.

Judicial Leanings

Although justices are nominated by the president in power, and receive confirmation by the U.S. Senate, justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches. Jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings generally refer to legal outlook rather than a political or legislative one. The nominations of justices are endorsed by individual politicians in the legislative branch who vote their approval or disapproval of the nominated justice. The ideologies of jurists can be measured and compared with several metrics, including the Segal-Cover score,   Martin-Quinn score, and Judicial Common Space score.

Following the confirmation of Amy Coney Barrett in 2020, the Court currently consists of six justices appointed by Republican Party presidents and three appointed by Democratic Party presidents. It is popularly accepted that Chief Justice Roberts and associate justices Clarence Thomas, Alito, Gorsuch, Kavanaugh, and Barrett appointed by Republican presidents, compose the Court's conservative wing. Justices Breyer, Sotomayor and Kagan, appointed by Democratic presidents, compose the Court's liberal wing. Gorsuch had a track record as a reliably conservative judge in the 10th circuit. Kavanaugh was considered one of the more conservative judges in the DC Circuit prior to his appointment to the Supreme Court. Likewise, Barrett's brief track record on the Seventh Circuit is conservative. Prior to Justice Ginsburg's death, Chief Justice Roberts was considered the Court's median justice (in the middle of the ideological spectrum, with four justices more liberal and four more conservative than him), making him the ideological center of the Court.

Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions." He pointed out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defied the popular conception of the ideological lines of the Court. Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) were an illustration that the conservative justices had not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacked merit: Clarence Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.

Percentage of cases decided unanimously and by a one-vote margin from 1971-2016.
[Source]

According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5-4 vote, with an average of 70% of those split opinions decided by a Court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the Court has divided along ideological lines, which represents about 44% of all the 5-4 decisions.

In the October 2010 term, the Court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the Court reverses a lower court without arguments and without issuing an opinion on the case). Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9-0 or 8-0), and 16 decisions were made by a 5-4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term). However, in fourteen of the sixteen 5-4 decisions, the Court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Clarence Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5-4 decisions, the highest cohesion rate of that bloc in the Roberts Court.

The October 2017 term had a low rate of unanimous rulings, with only 39% of the cases decided by unanimous rulings, the lowest percentage since the October 2008 term when 30% of rulings were unanimous. Chief Justice Roberts was in the majority most often (68 out of 73 cases, or 93.2%), with retiring Justice Anthony Kennedy in second (67 out of 73 cases, or 91.8%); this was typical of the Roberts Court, in which Roberts and Kennedy have been in the majority most frequently in all terms except for the 2013 and 2014 terms (though Kennedy was in the top on both those terms). Justice Sotomayor was the justice least likely to be in the majority (in 50 out of 73 cases, or 68.5%). The highest agreement between justices was between Ginsburg and Sotomayor, who agreed on 95.8% of the cases, followed by Clarence Thomas and Alito agreeing on 93% of cases. There were 19 cases that were decided by a 5-4 vote (26% of the total cases); 74% of those cases (14 out of 19) broke along ideological lines, and for the first time in the Roberts Court, all of those resulted in a conservative majority, with Roberts, Kennedy, Thomas, Alito, and Gorsuch on the majority.

The October 2018 term, which saw the replacement of Anthony Kennedy by Brett Kavanaugh, once again saw a low rate of unanimity: only 28 of 71 decided cases were decided by a unanimous court, about 39% of the cases. Of these, only 19 cases had the Justices in total agreement. Chief Justice Roberts was once again the justice most often in the majority (61 out of 72 cases, or 85% of the time). Although Kavanaugh had a higher percentage of times in the majority, he did not participate in all cases, voting in the majority 58 out of 64 times, or 91% of the cases in which he participated. Of the justices who participated in all 72 cases, Kagan and Alito tied in second place, voting in the majority 59 out of 72 times (or 82% of the time). Looking only at cases that were not decided unanimously, Roberts and Kavanaugh were the most frequently in the majority (33 cases, with Roberts being in the majority in 75% of the divided cases, and Kavanaugh in 85% of the divided cases he participated in). Of 20 cases that were decided by a vote of 5-4, eight featured the conservative justices in the majority (Roberts, Clarence Thomas, Alito, Gorsuch, and Kavanaugh), and eight had the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) joined by a conservative: Gorsuch was the most frequent, joining them four times, and the remaining conservative justices joining the liberals once each. The remaining 4 cases were decided by different coalitions. The highest agreement between justices was between Roberts and Kavanaugh, who agreed at least in judgement 94% of the time; the second highest agreement was again between Ginsburg and Sotomayor, who agreed 93% of the time. The highest rate of full agreement was between Ginsburg and Kagan (82% of the time), closely followed by Roberts and Alito, Ginsburg and Sotomayor, and Breyer and Kagan (81% of the time). The largest rate of disagreement was between Thomas and both Ginsburg and Sotomayor; Thomas disagreed with each of them 50% of the time.

Facilities

The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City. When Philadelphia became the capital, the Court met briefly in Independence Hall before settling in Old City Hall from 1791 until 1800. After the government moved to Washington, D.C., the Court occupied various spaces in the Capitol building until 1935, when it moved into its own purpose-built home. The four-story building was designed by Cass Gilbert in a classical style sympathetic to the surrounding buildings of the Capitol and Library of Congress, and is clad in marble. The building includes the courtroom, justices' chambers, an extensive law library, various meeting spaces, and auxiliary services including a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own police force separate from the Capitol Police.

Located across First Street from the United States Capitol at One First Street NE and Maryland Avenue, the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays. Visitors may not tour the actual courtroom unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film. When the Court is not in session, lectures about the courtroom are held hourly from 9:30 am to 3:30 pm and reservations are not necessary. When the Court is in session the public may attend oral arguments, which are held twice each morning (and sometimes afternoons) on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available. The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. From mid-May until the end of June, the court releases orders and opinions beginning at 10 am, and these 15 to 30-minute sessions are open to the public on a similar basis. Supreme Court Police are available to answer questions.

Jurisdiction

Congress is authorized by Article III of the federal Constitution to regulate the Supreme Court's appellate jurisdiction. The Supreme Court has original and exclusive jurisdiction over cases between two or more states but may decline to hear such cases. It also possesses original but not exclusive jurisdiction to hear "all actions or proceedings to which ambassadors, other public ministers, consuls, or vice consuls of foreign states are parties; all controversies between the United States and a State; and all actions or proceedings by a State against the citizens of another State or against aliens."

In 1906, the Court asserted its original jurisdiction to prosecute individuals for contempt of court in United States v. Shipp. The resulting proceeding remains the only contempt proceeding and only criminal trial in the Court's history. The contempt proceeding arose from the lynching of Ed Johnson in Chattanooga, Tennessee the evening after Justice John Marshall Harlan granted Johnson a stay of execution to allow his lawyers to file an appeal. Johnson was removed from his jail cell by a lynch mob, aided by the local sheriff who left the prison virtually unguarded, and hanged from a bridge, after which a deputy sheriff pinned a note on Johnson's body reading: "To Justice Harlan. Come get your nigger now." The local sheriff, John Shipp, cited the Supreme Court's intervention as the rationale for the lynching. The Court appointed its deputy clerk as special master to preside over the trial in Chattanooga with closing arguments made in Washington before the Supreme Court justices, who found nine individuals guilty of contempt, sentencing three to 90 days in jail and the rest to 60 days in jail. In all other cases, the Court has only appellate jurisdiction, including the ability to issue writs of mandamus and writs of prohibition to lower courts. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.

The Court's appellate jurisdiction consists of appeals from federal courts of appeal (through certiorari,   certiorari before judgment, and certified questions), the United States Court of Appeals for the Armed Forces (through certiorari), the Supreme Court of Puerto Rico (through certiorari), the Supreme Court of the Virgin Islands (through certiorari), the District of Columbia Court of Appeals (through certiorari), and "final judgments or decrees rendered by the highest court of a State in which a decision could be had" (through certiorari). In the last case, an appeal may be made to the Supreme Court from a lower state court if the state's highest court declined to hear an appeal or lacks jurisdiction to hear an appeal. For example, a decision rendered by one of the Florida District Courts of Appeal can be appealed to the U.S. Supreme Court if (a) the Supreme Court of Florida declined to grant certiorari, e.g. Florida Star v. B.J.F., or (b) the district court of appeal issued a per curiam decision simply affirming the lower court's decision without discussing the merits of the case, since the Supreme Court of Florida lacks jurisdiction to hear appeals of such decisions. The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816), and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases. It has to be noted that this "collateral review" often only applies to individuals on death row and not through the regular judicial system.

Since Article Three of the Constitution of the United States stipulates that federal courts may only entertain "cases" or "controversies," the Supreme Court cannot decide cases that are moot and it does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard,  416 U.S. 312 (1974), the Court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the Court on his claim would not be able to redress any injury he had suffered. However, the Court recognizes some circumstances where it is appropriate to hear a case that is seemingly moot. If an issue is "capable of repetition yet evading review," the Court would address it even though the party before the Court would not themselves be made whole by a favorable result. In Roe v. Wade, 410 U.S. 113 (1973), and other abortion cases, the Court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer than the typical human gestation period to appeal a case through the lower courts to the Supreme Court. Another mootness exception is voluntary cessation of unlawful conduct, in which the Court considers the probability of recurrence and plaintiff's need for relief.

Justices as Circuit Justices

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "circuit justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time. Under the Judiciary Act of 1789, each justice was required to "ride circuit," or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many justices, who cited the difficulty of travel. Moreover, there was a potential for a conflict of interest on the Court if a justice had previously decided the same case while riding circuit. Circuit riding ended in 1901, when the Circuit Court of Appeals Act was passed, and circuit riding was officially abolished by Congress in 1911.

The circuit justice for each circuit is responsible for dealing with certain types of applications that, under the Court's rules, may be addressed by a single justice. These include applications for emergency stays (including stays of execution in death-penalty cases) and injunctions pursuant to the All Writs Act arising from cases within that circuit, as well as routine requests such as requests for extensions of time. In the past, circuit justices also sometimes ruled on motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal. Ordinarily, a justice will resolve such an application by simply endorsing it "granted" or "denied" or entering a standard form of order; however, the justice may elect to write an opinion, referred to as an in-chambers opinion, in such matters if they wish.

A circuit justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A circuit justice sitting with the Court of Appeals has seniority over the chief judge of the circuit. The chief justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each associate justice is assigned to one or two judicial circuits.

As of November 20, 2020, the allotment of the justices among the circuits is as follows.

Justices Among the Circuits a
a As of 2020-11-20.
Circuit	Justice
District of Columbia Circuit	Chief Justice John Roberts
First Circuit	Justice Stephen Breyer
Second Circuit	Justice Sonia Sotomayor
Third Circuit	Justice Samuel Alito
Fourth Circuit	Chief Justice John Roberts
Fifth Circuit	Justice Samuel Alito
Sixth Circuit	Justice Brett Kavanaugh
Seventh Circuit	Justice Amy Coney Barrett
Eighth Circuit	Justice Brett Kavanaugh
Ninth Circuit	Justice Elena Kagan
Tenth Circuit	Justice Neil Gorsuch
Eleventh Circuit	Justice Clarence Thomas
Federal Circuit	Chief Justice John Roberts

Six of the current justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Breyer (First Circuit), Justice Sotomayor (Second Circuit), Justice Alito (Third Circuit), Justice Amy Coney Barrett (Seventh Circuit), and Justice Gorsuch (Tenth Circuit).

Process

A term of the Supreme Court commences on the first Monday of each October, and continues until June or early July of the following year. Each term consists of alternating periods of around two weeks known as "sittings" and "recesses"; justices hear cases and deliver rulings during sittings, and discuss cases and write opinions during recesses.

Case Selection

Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as cert; the Court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case." The Court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law. The party that appealed to the Court is the petitioner and the non-mover is the respondent. All case names before the Court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas">United States v. Texas (1892), a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford, parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact. Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury. Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.

A cert petition is voted on at a session of the court called conference. A conference is a private meeting of the nine Justices by themselves; the public and the Justices' clerks are excluded. The rule of four permits four of the nine justices to grant a writ of certiorari. If it is granted, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition. The court grants a petition for cert only for "compelling reasons," spelled out in the court's Rule 10. Such reasons include:

When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split"; if the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the case's final ruling. To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool"; currently, all justices except for Justices Alito and Gorsuch participate in the cert pool.

Oral Argument

When the Court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae, or "friends of the court," may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the Court may choose to give more time, although this is rare), and during that time, the Justices may interrupt the advocate and ask questions. The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.

Supreme Court Bar

In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys. The rest join for a one-time fee of $200, earning the court about $750,000 annually. Attorneys can be admitted as either individuals or as groups. The group admission is held before the current justices of the Supreme Court, wherein the chief justice approves a motion to admit the new attorneys. Lawyers commonly apply for the cosmetic value of a certificate to display in their office or on their resume. They also receive access to better seating if they wish to attend an oral argument. Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library.

Decision

At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular term by the end of that term. Within that term, the Court is under no obligation to release a decision within any set time after oral argument. After the oral argument is concluded, usually in the same week as the case was submitted, the Justices retire to another conference at which the preliminary votes are tallied and the Court sees which side has prevailed. One of the Justices in the majority is then assigned to write the Court's opinion, also known as the "majority opinion," an assignment made by the most senior Justice in the majority, with the Chief Justice always being considered the most senior. Drafts of the Court's opinion circulate among the Justices until the Court is prepared to announce the judgment in a particular case.

Justices are free to change their votes on a case up until the decision is finalized and published. In any given case, a Justice is free to choose whether or not to author an opinion or else simply join the majority or another Justice's opinion. There are several primary types of opinions:

Since recording devices are banned inside the courtroom of the Supreme Court Building, the delivery of the decision to the media is done via paper copies and is known as the "Running of the Interns"; it is possible that through recusals or vacancies the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices. If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought to the Supreme Court by direct appeal from a United States District Court, the chief justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there. This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945).

Published Opinions

The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, several opinions and lists of the court's orders are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports (or a competing version published by another commercial legal publisher but containing parallel citations) to allow those who read their pleadings and other briefs to find the cases quickly and easily. As of January 2019, there are:

As of March 2012, the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012. This figure does not reflect the number of cases the Court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle, where Parents Involved in Community Schools v. Seattle School District No. 1 [<< redirects from: Meredith v. Jefferson County Board of Education] was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which are a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.

Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter, published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals and other legal media, case citations generally contain cites from each of the three reporters; for example, citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Commission, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition.

Citations to Published Opinions

Lawyers use an abbreviated format to cite cases, in the form "vol U.S. page, pin (year)," where vol is the volume number, page is the page number on which the opinion begins, and year is the year in which the case was decided. Optionally, pin is used to "pinpoint" to a specific page number within the opinion. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973), which means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For opinions or orders that have not yet been published in the preliminary print, the volume and page numbers may be replaced with ___

Institutional Powers and Constraints

The Federal court system and the judicial authority to interpret the Constitution received little attention in the debates over the drafting and ratification of the Constitution. The power of judicial review, in fact, is nowhere mentioned in it. Over the ensuing years, the question of whether the power of judicial review was even intended by the drafters of the Constitution was quickly frustrated by the lack of evidence bearing on the question either way. Nevertheless, the power of judiciary to overturn laws and executive actions it determines are unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78,   Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute."

The Supreme Court firmly established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the American system of checks and balances. In explaining the power of judicial review, Chief Justice John Marshall stated that the authority to interpret the law was the particular province of the courts, part of the duty of the judicial department to say what the law is. His contention was not that the Court had privileged insight into constitutional requirements, but that it was the constitutional duty of the judiciary, as well as the other branches of government, to read and obey the dictates of the Constitution.

Since the founding of the republic, there has been a tension between the practice of judicial review and the democratic ideals of egalitarianism, self-government, self-determination and freedom of conscience. At one pole are those who view the Federal Judiciary and especially the Supreme Court as being "the most separated and least checked of all branches of government." Indeed, federal judges and justices on the Supreme Court are not required to stand for election by virtue of their tenure "during good behavior," and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Although subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. At the other pole are those who view the judiciary as the least dangerous branch, with little ability to resist the exhortations of the other branches of government.

The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!"; however, this alleged quotation has been disputed. Some state governments in the Southern United States also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon ultimately complied with the Supreme Court's ruling.

Supreme Court decisions can be, and have been, purposefully overturned by constitutional amendment, which has happened on six occasions:

When the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter act, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional consideration: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials. In addition, the other two branches can restrain the Court through other mechanisms. Congress can increase the number of justices, giving the President power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The Court sanctioned such congressional action in the Reconstruction-era case ex parte McCardle (1869), although it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871). On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government; for example, in United States v. Curtiss-Wright Export Corp. (1936), Dames & Moore v. Regan (1981), and notably in Goldwater v. Carter (1979), which effectively gave the presidency the power to terminate ratified treaties without the consent of Congress. The Court's decisions can also impose limitations on the scope of Executive authority, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).

Law Clerks

Each Supreme Court justice hires several law Clerks to review petitions for writ of certiorari,   research them, prepare bench memorandums, and draft opinions. Associate justices are allowed four clerks. The chief justice is allowed five clerks, but Chief Justice Rehnquist hired only three per year, and Chief Justice Roberts usually hires only four. Generally, law clerks serve a term of one to two years.

The first law clerk was hired by Associate Justice Horace Gray in 1882. Oliver Wendell Holmes Jr. and Louis Brandeis were the first Supreme Court justices to use recent law school graduates as clerks, rather than hiring "a stenographer-secretary." Most law clerks are recent law school graduates.

The first female clerk was Lucile Lomen, hired in 1944 by Justice William O. Douglas. The first African-American, William T. Coleman Jr., was hired in 1948 by Justice Felix Frankfurter. A disproportionately large number of law clerks have obtained law degrees from elite law schools, especially Harvard, Yale, the University of Chicago, Columbia, and Stanford. From 1882 to 1940, 62% of law clerks were graduates of Harvard Law School. Those chosen to be Supreme Court law clerks usually have graduated in the top of their law school class and were often an editor of the law review, or a member of the moot court board. By the mid-1970s, clerking previously for a judge in a federal court of appeals had also become a prerequisite to clerking for a Supreme Court justice.

Nine Supreme Court justices previously clerked for other justices: Byron White for Frederick M. Vinson,   John Paul Stevens for Wiley Rutledge,   William Rehnquist for Robert H. Jackson, Stephen Breyer for Arthur Goldberg, John Roberts for William Rehnquist, Elena Kagan for Thurgood Marshall, Neil Gorsuch for both Byron White and Anthony Kennedy, Brett Kavanaugh also for Kennedy, and Amy Coney Barrett for Antonin Scalia. Justices Gorsuch and Kavanaugh served under Kennedy during the same term. Gorsuch is the first justice to clerk for and subsequently serve alongside the same justice, serving alongside Kennedy from April 2017 through Kennedy's retirement in 2018. With the confirmation of Justice Kavanaugh, for the first time a majority of the Supreme Court was composed of former Supreme Court law clerks (Roberts, Breyer, Kagan, Gorsuch and Kavanaugh, now joined by Barrett).

Several current Supreme Court justices have also clerked in the federal courts of appeals: John Roberts for Judge Henry Friendly of the United States Court of Appeals for the Second Circuit, Justice Samuel Alito for Judge Leonard I. Garth of the United States Court of Appeals for the Third Circuit, Elena Kagan for Judge Abner J. Mikva of the United States Court of Appeals for the District of Columbia Circuit,   Neil Gorsuch for Judge David B. Sentelle of the United States Court of Appeals for the District of Columbia, Brett Kavanaugh for Judge Walter Stapleton of the United States Court of Appeals for the Third Circuit and Judge Alex Kozinski of the United States Court of Appeals for the Ninth Circuit, and Amy Coney Barrett for Judge Laurence Silberman of the U.S. Court of Appeals for the D.C. Circuit.

Politicization of the Court

Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a >nonpartisanJ. Michael Luttig said. David J. Garrow, professor of history at the University of Cambridge, stated that the Court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists."

According to the Vanderbilt Law Review study, this 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 just 44% of Americans approve of the job the Supreme Court is doing. Three-quarters said justices' decisions are sometimes influenced by their political or personal views. One study, using four-year panel data, found that public opinion of the Supreme Court was highly stable over time.

Criticism

The Supreme Court has been the object of criticisms on a range of issues. Among them are the following issues.

Judicial Activism

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. Claims of judicial activism are not confined to any particular ideology. An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts, and which was reversed in the 1930s.

An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion on the basis of the "right to privacy" inferred from the Fourteenth Amendment, a reasoning that some critics argued was circuitous. Legal scholars, justices, and presidential candidates have criticized the Roe decision. The progressive Brown v. Board of Education decision banning racial segregation in public schools has been criticized by conservatives such as Patrick Buchanan, former Associate Justice nominee and Solicitor General Robert Bork and former presidential contender Barry Goldwater.

More recently, Citizens United v. Federal Election Commission was criticized for expanding upon the precedent in First National Bank of Boston v. Bellotti (1978) that the First Amendment applies to corporations, including campaign spending. President Abraham Lincoln warned, referring to the Dred Scott decision (upheld slavery), that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers." Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."

During different historical periods, the Court has leaned in different directions. Critics from both sides complain that activist judges abandon the Constitution and substitute their own views instead. Critics include writers such as Andrew Napolitano,   Phyllis Schlafly [see also Eagle Forum],   Mark R. Levin, Mark I. Sutherland, and James MacGregor Burns. Past presidents from both parties have attacked judicial activism, including Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan. Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état - slow-moving and genteel - but a coup d'état nonetheless." Brian Leiter wrote that "Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power," and "Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial."

Individual Rights

Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery; Plessy v. Ferguson (1896) upheld segregation under the doctrine of separate but equal;   Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights. Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" 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," according to one report. 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, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and 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.

Power Excess

This criticism is related to complaints about judicial activism. George Will wrote that the Court has an "increasingly central role in American governance." It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009. A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch. Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power," it is likely to "self-indulge itself," and unlikely to "engage in dispassionate analysis." Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."

Courts Are a Poor Check on Executive Power

British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to navigate their way through the system, their ability to restrain other branches is severely weakened. In contrast, various other countries have a dedicated constitutional court that has original jurisdiction on constitutional claims brought by persons or political institutions; for example, the Federal Constitutional Court of Germany, which can declare a law unconstitutional when challenged.

Federal versus State Power

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 Tenth Amendment to the Constitution of the United States explicitly grants "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The 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 of 1973 (U.S. Congress), 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. Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution." Justice Alito said congressional authority under the Commerce Clause is "quite broad"; modern-day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.

Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the Court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be laboratories of democracy. One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law." Others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level." More recently, the issue of federal power is central in the prosecution of Gamble v. United States, which is examining the doctrine of "separate sovereigns," whereby a criminal defendant can be prosecuted by a state court and then by a federal court.

Secretive Proceedings

The Court has been criticized for keeping its deliberations hidden from public view. According to a review of Jeffrey Toobin's 2007 expose The Nine: Inside the Secret World of the Supreme Court; "Its inner workings are difficult for reporters to cover, like a closed 'cartel', only revealing itself through 'public events and printed releases, with nothing about its inner workings.'" The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives." Larry Sabato complains about the Court's "insularity"; a Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy," and 50% of voters stated they would watch Court proceedings if they were televised. More recently, several justices have appeared on television, written books and made public statements to journalists. In a 2009 interview on C-SPAN, journalists Joan Biskupic of USA Today and Lyle Denniston of SCOTUSblog argued that the Court is a "very open" institution with only the justices' private conferences inaccessible to others. In October 2010, the Court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they occur.

Judicial Interference in Political Disputes

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 Goreapportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called political questions.

Not Choosing Enough Cases to Review

Senator Arlen Specter said the Court should "decide more cases"; on the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court heard then was smaller than when he first joined the Supreme Court, he also stated that he had not changed his standards for deciding whether to review a case, nor did he believe his colleagues had changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.

Lifetime Tenure

Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day." Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity. James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times." Proposals to solve these problems include term limits for justices, as proposed by Levinson and Sabato as well as a mandatory retirement age proposed by Richard Epstein, among others. However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."

Shadow Docket

The term "shadow docket" was first used by Will Baude in his 2015 law review article (pdf). The term refers to decisions from the United States Supreme Court, which are decided outside of its regular docket without oral argument - specifically, "a range of orders and summary decisions that defy its normal procedural regularity." Generally, the Supreme Court allows the parties to argue their points both in written briefs and orally before it issues a detailed explanation of its decision. However, cases on the shadow docket are decided on an application for emergency relief from a lower court's order. The lower court has not made a final decision on the merits of the case by the time the case is decided on the shadow docket. Further, the Court's decisions are rarely explained.  [Source: [DworkenLaw.com, 2020-11-03] What is the Shadow Docket and Why is it Important?]

Some legal scholars are concerned about the effect of the increased number of shadow docket decisions on American jurisprudence. The Court's merit opinions impact not only the parties, but are binding precedent on the lower courts in subsequent cases with similar factual and legal issues. How should the lower courts interpret and weigh in these decisions without a full explanation of its ruling from the Court?.  [Source: [DworkenLaw.com, 2020-11-03] What is the Shadow Docket and Why is it Important?]

"Shadow docket" is a term coined by University of Chicago law professor Will Baude six years ago to describe "a range of orders and summary decisions that defy its normal procedural regularity." The shadow docket has always been there, where the court issues rulings (without scheduling hearings) that are often unsigned and often consist of just one or two sentences. But the current iteration of the conservative court led by Chief Justice John Roberts has been picking up the pace of those shadow docket cases.

References For This Subsection

Additional Reading: Shadow Docket

Poynter.org Critique of SCOTUS' Shadow Docket

Key points.

• Some of the most important moves by the Supreme Court in the past few years have come from the so-called "shadow docket," which means they don't follow the traditional process of briefs, oral arguments, and private discussions among the justices to produce lengthy, heavily footnoted opinions.

• While the court has made such procedural decisions for more than two centuries, their number has been growing recently, the legal cases they've addressed have been hotly contested, and their footprint in legal jurisprudence has arguably risen, even though the decisions are supposed to be temporary and not based on the merits of the case.

• Even Supreme Court justices have expressed concern about the growing number and sweep of "shadow docket" decisions, including Chief Justice John Roberts, though others, including Samuel Alito, have put up a robust defense.

Some of the most important moves by the Supreme Court in the past few years haven't followed the traditional process of briefs, oral arguments, and private discussions among the justices to produce lengthy, heavily footnoted opinions. Some procedural actions by the justices have come to be known collectively as the "shadow docket" - and as the number and importance of these decisions has increased, so have the concerns raised by scholars, senators, and even some of the justices themselves. They say the decisions are rushed, that they don't allow for full arguments, and that the rulings are less transparent than typical cases. This summer alone, the court issued 11 such opinions, compared with three during a similar period in 2016, according to calculations by Bloomberg. Nominally, these decisions have been technical in nature, but they have addressed more hot-button issues than in the past.

The matters that have recently been addressed in "shadow docket" decisions - that is, decided on procedural grounds rather than on the merits, and often with brief or unsigned opinions - have included then-President Donald Trump's travel ban and his proposed changes to how the U.S. Census counts U.S. residents. They have also included several cases addressing the competing interests between public health protections and in-person religious observances. Just in the past few months, the Supreme Court has produced several high-profile examples of potentially far-reaching decisions that didn't stem from a full arguing of a case or a long climb through the ranks of lower courts.

In one recent decision involving a highly controversial abortion case, Chief Justice John Roberts used his dissent to complain that "we are asked to resolve these novel questions - in the course of two days, without the benefit of consideration by the District Court or Court of Appeals - without ordinary merits briefing and without oral argument." Meanwhile, one conservative justice, Samuel Alito, fired back in a high-profile speech. Alito took aim at critics who, he said, were using the "catchy and sinister term 'shadow docket.'" He urged the use of the term "emergency docket" instead. "You can't expect the E.M.T.s and the emergency rooms to do the same thing that a team of physicians and nurses will do when they are handling a matter when time is not of the essence in the same way," Alito said.

Here are some of the most widely noted cases of this type in recent months.

• In a one-paragraph order in August, the justices let stand a lower court ruling requiring the Biden administration to restart the "remain in Mexico" policy for asylum seekers, which the administration had tried to end.

• Also in August, the justices blocked a federal anti-eviction measure that the administration had defended on public health grounds during the coronavirus pandemic. This move had been teed up in June when Justice Brett Kavanaugh signaled, in a one-page opinion, that an attempt to extend the eviction moratorium without Congress' assent would likely be struck down by a majority of justices.

• Then, shortly before midnight on Sept. 1, five justices prevailed in a decision not to block a Texas law that would ban abortions after six weeks, including in cases of rape and incest, to be enforced by citizen lawsuits. Critics said that the law would effectively contradict the longstanding decision in Roe v. Wade, yet the majority decision was just one page long and was unsigned; the four separate dissents, some of them heated, totaled 11 pages.

We thought it was a good time to explain how we got here.

What's the definition of the "shadow docket"?

In the normal course of events, the Supreme Court will agree to hear a case after it has made its way up through multiple levels of lower courts, with decisions made at each level. Once the Supreme Court officially decides to consider a case, briefs are filed by all parties and an hour-long oral argument is held. Eventually, a lengthy opinion is produced, with the majority and, often, a minority writing one or more opinions. From start to finish, the time between the Supreme Court accepting a case and the release of an opinion can take up to a year.

By contrast, items that are "emergency" actions are decided on an expedited basis, said University of Pennsylvania law professor Kermit Roosevelt. Often, these cases will involve the lifting or continuance of a lower court ruling. Rather than months, lawyers may have days to assemble their briefs. Such cases are usually resolved "with terse orders that provide minimal explanation for the decision," said Carl Tobias, a law professor at the University of Richmond. Sometimes these orders are not even signed by each justice, potentially leaving unclear which justice supported or opposed the majority ruling.

Is this a new phenomenon?

The term is new, but the concept is not. The Supreme Court has been dealing with emergency petitions "all the way back to the court's beginnings in 1790," said University of Texas law professor Steve Vladeck. Historically, most of the court's procedural orders have been relatively uncontroversial, Vladeck has written, though he added that high-profile rulings have come out now and then. Past decisions have included "orders blocking and then clearing the way for the execution of Julius and Ethel Rosenberg in 1953 and orders blocking and then clearing the way for the continued bombing of Cambodia in 1973," Vladeck wrote. The term "shadow docket," however, only emerged in 2015, in a journal article by William Baude, a University of Chicago law professor. Baude and several other legal scholars confirmed to PolitiFact that Baude coined the term.

So why are we hearing about it now?

Legal experts say that the term caught on in legal circles - and increasingly among the general public - because its use seems to be growing, along with its influence on the law. By Vladeck's count, the court issued 28 orders during the Trump administration to block adverse lower-court rulings as the government mounted an appeal. By comparison, the court issued four such orders under presidents George W. Bush and Barack Obama combined. "This had the effect of allowing the government to enforce policies that had been invalidated by every other court ruling on their legality," Vladeck said. Since Justice Amy Coney Barrett was confirmed in October 2020, Vladeck has written, the court has issued seven emergency injunctions to block state coronavirus restrictions alone, compared to just four injunctions blocking all types of state laws during the first 15 years of Roberts' tenure.

Jonathan H. Adler, a Case Western Reserve University law professor, said the number and reach of such cases has expanded, although there is debate about why that's the case. "Some point their finger at the court, some believe the court is responding to external factors, and some believe it is a mix," Adler said. He added that the uptick in the impact of these cases began prior to the confirmation of Trump's nominees, and that it has been exacerbated by the pandemic, which has raised some novel and time-sensitive legal questions about the constitutionality of public health restraints. "The numbers are also affected by multiple instances of the court doing the exact same thing or dealing with the same cases or issues repeatedly," Adler said. "There are six orders concerning the travel ban litigation, for instance, and multiple entries for Census litigation."

Why could growth in these sorts of cases be seen as a problem?

Some of the criticism has an ideological color, since many such decisions have gone against left-leaning policies. Some legal observers suggest that its use offers the court's conservative majority a shortcut to desired policy goals without fully going on the record about their logic or addressing the counter-arguments. "The shadow docket is being used more than before, and some liberal commentators argue that the court's shadow docket decisions are often badly flawed and/or serve a conservative agenda," said Ilya Somin, a George Mason University law professor.

Still, much of the criticism has sprung from less ideological concerns, including the lack of opportunity to make detailed arguments to the justices, the faster turnaround by the justices, the shorter opinions, and in some cases the absence of transparency about which justices comprised a majority. The Supreme Court's orders can also be confusing to lower courts, Baude of the University of Chicago has written. "Because the lower-court judges don't know why the Supreme Court does what it does, they sometimes divide sharply when forced to interpret the court's non-pronouncements," wrote Baude, a former clerk for Roberts.

Some have also warned of double standards in recent orders. The decision that allowed the Texas abortion law to stand "gives you a sense of how the court thinks about irreparable injury - yes for believers denied the ability to congregate, no for women prevented from obtaining abortions," Roosevelt said. Some justices themselves have expressed concerns - not just Roberts, but also Elena Kagan, who wrote in her dissent in the Texas abortion case that "the majority's decision is emblematic of too much of this court's shadow-docket decisionmaking - which every day becomes more unreasoned, inconsistent, and impossible to defend."

Meanwhile, Alito has aggressively pushed back on such criticism. In a speech at the University of Notre Dame, Alito called "false and inflammatory" the notion that Texas abortion decision nullified Roe v. Wade, saying it was purely a procedural decision. Critics recent orders were wrong to allege that "a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view."

Do these decisions have less value for legal precedent than fully decided cases?

There's some dispute about how much legal precedent a "shadow docket" case provides. The longstanding assumption is that they have less precedential value than fully argued and decided cases, because "they rarely resolve cases on the merits and almost by definition are temporary," Tobias said. In addition, Somin said, the fact that "they are less fully reasoned also means they provide less detailed guidance to lower courts." That said, lower courts do take them seriously. And some legal observers express concern that the seriousness with which lower courts take these pronouncements has grown in recent years. "The worry is that the court has increasingly been using them to make new law and then rely on them in future cases," Roosevelt said.

For instance, the Supreme Court chastised a San Francisco-based federal appeals court for failing to properly follow four prior orders in coronavirus cases, Vladeck has written. "The Court is directly instructing lower courts to treat at least some of these orders as precedential," Vladeck told PolitiFact. Adler, however, said he doesn't "particularly agree" with Vladeck's assertion that the court has been treating these cases as precedential. "We would expect the court to treat like cases alike, and we would expect lower courts not to repeat the errors that prompt Supreme Court action," Adler said. "Neither makes a shadow docket order 'precedential.'"

Accepting Gifts and Outside Income

The 21st century has seen increased scrutiny of justices accepting expensive gifts and travel. All of the members of the Roberts Court have accepted travel or gifts. In 2012, Justice Sonia Sotomayor received $1.9 million in advances from her publisher Knopf Doubleday. Justice Scalia and others took dozens of expensive trips to exotic locations paid for by private donors. Private events sponsored by partisan groups that are attended by both the justices and those who have an interest in their decisions have raised concerns about access and inappropriate communications. Stephen Spaulding, the legal director at Common Cause, said: "There are fair questions raised by some of these trips about their commitment to being impartial."

Selected Landmark Supreme Court Decisions

Disruptive Influencers

***** PUFFIN *****

***** CONSIDER adding https://en.wikipedia.org/wiki/Josh_Hawley | https://en.wikipedia.org/wiki/Josh_Hawley#U.S._Supreme_Court_nominations

... From Article III article,

Named the Article III Project for the section of the Constitution that established the judiciary, the organization will be led by Mike Davis, a former Republican Senate and White House aide who was a central figure in the confirmations of Supreme Court of the United States Associate Justices Neil M. Gorsuch and Brett M. Kavanaugh.

Mike Davis is the founder and president of the Article III Project (A3P), an advocacy organization. Davis previously served as the chief counsel for nominations for then-Senate Judiciary Chairman Chuck Grassley (R-IA), where he served as staff leader for the confirmation of Justice Brett Kavanaugh and a record number of federal circuit judges. Davis previously clerked for Justice Neil M. Gorsuch, both on the U.S. Supreme Court and the U.S. Court of Appeals for the 10th Circuit. He grew up in Des Moines and graduated from the University of Iowa and Iowa Law.

***** CHECK THE ACCURACY OF FOLLOWING STATEMENTS! *****

The people and corporations that fund dark money groups through donor-advised funds use those groups (notably nonprofit organizations such as super PACs) for the co-optation of political processes, specifically targeting legislative and judicial systems. This approach broadly targets society at large (voters), and elected and appointed officials who appoint state and federal judicial officials. Notably, in the latter case a smaller group of officials, allied with dark money funders and agendae, focus those agenda through the influence of legislators and judicial appointments. In the case of the Supreme Court of the United States, judicial authority is concentrated among nine individuals - three of whom (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) were selected by Leonard Leo and the Federalist Society - nominated by President Trump, with those nominations confirmed through the actions of Mitch McConnell.

• Secretive Proceedings
• Shadow Docket

Supreme Court justices - at their discretion - have the authority to strike down presidential directives for violating either the Constitution or statutory law.

The court's power and prestige grew substantially during the Marshall Court (1801-1835). Under Marshall, the court established the power of judicial review over acts of Congress, including specifying itself as the supreme expositor of the Constitution   (Marbury v. Madison) and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states, notably Martin v. Hunter's Lessee,   McCulloch v. Maryland, and Gibbons v. Ogden.

Charles Koch's Americans for Prosperity Foundation (AFP) donated at least $1 million to fund a national campaign to win Senate confirmation of Amy Coney Barrett's Supreme Court nomination. At the time (ca. 2021-04), the Americans for Prosperity Foundation was seeking a broad constitutional ruling that would keep its donor identities secret. Note also "Americans for Prosperity Foundation v. Bonta.

Charles Koch

Alliance Defending Freedom

American Legislative Exchange Council

Council for National Policy

Cato Institute

Leonard A. Leo

Leonard Leo is considered one of the most powerful conservatives in the country, playing a key role in shaping President Trump's selections for the Supreme Court and raising hundreds of millions of dollars to fill the nation's courts with conservative judges.

Federalist Society

CRC Advisors

In 2020-01, conservative powerhouse Leonard Leo stepped down from the daily running of the Federalist Society to focus on a new venture - CRC Advisors), inspired by Arabella Advisors - that will funnel big money and expertise across the conservative movement.

Arabella Advisors serves as the hub of a well-funded politically liberal "dark money" network.Between 2013 and 2018, groups associated with Arabella Advisors raising ~$2.3 billion, and spent $1.8 billion. Because of the way they are legally structured, Arabella Advisors and its affiliated groups are not required to disclose their donors.

Arabella Advisors and its affiliated entities take advantage of a so-called "tax loophole" in which groups who use a fiscal sponsorship arrangement do not have to file a Form 990 with the Internal Revenue Service. Using "pass-through" arrangements, funding is passed from one organization to another, making it "extremely difficult to trace where a donor's money ends up."

On 2019-11-19, Politico detailed Arabella Advisors's stunning reach and influence as part of "an unprecedented gusher of secret money" that "boosted Democrats and liberal causes in 2018. Eying that success, in a 2020-01-07 Axios interview, Leonard Leo and his business partner, conservative communications executive Greg Mueller, said that after studying Arabella Advisor's structure they saw an opportunity to build a politically right-wing replica.

In a joint statement, Leo and Mueller said, "We have both worked for over three decades to build winning ventures, and our many partnerships have brought success across a wide range of challenges, most notably the many judicial confirmation battles undertaken as part of a broad effort to reshape the federal judiciary, reform our legal system, advance the rule of law, and protect our country's freedoms." The Washington Times reported that the two "recently worked together in support of the Senate confirmations of Supreme Court Justices Brett M. Kavanaugh and Neil M. Gorsuch."

CRC advocated on behalf of Supreme Court of the United States Associate Justice nominee Neil Gorsuch. In 2018, CRC was involved in pushing unsubstantiated allegations made by activist Edward Whelan that the sexual assault accuser of Supreme Court justice nominee Brett Kavanaugh had confused Kavanaugh with someone who allegedly looked like Kavanaugh.

CRC Advisors is, de facto, a mirror of Creative Response Concepts (whose website redirects to CRC Advisors),prominent clients of Creative Response Concepts | CRC Advisors include the following groups.

• Americans for Prosperity
• Americans for Tax Reform

The new venture, CRC Advisors, will go beyond the dark money Leo and Mueller have already built and weaponized in the conservative legal movement movement.

CRC Advisors will evolve out of Mueller's existing conservative communications firm, CRC Strategies. Mueller and Leo say they plan to work with two existing non-profit groups, which will be rebranded as the Concord Fund and the 85 Fund, to funnel tens of millions of dollars into conservative fights around the country.

Leonard Leo and Greg Mueller, and their teams, have plenty of experience raising and spending millions for judicial battles - including the recent fight to confirm Brett Kavanaugh to the Supreme Court - but they want to expand this to other issues like deregulation at the state and federal level.

Mitch McConnell

Carrie Severino

Judicial Crisis Network

Additional Reading

[Additional Reading] Texas Abortion Debate and Ramifications

The Supreme Court of the United States (SCOTUS) will allow a legal challenge to Texas'  six-week abortion law  [Texas Heartbeat Act of 2021] to continue - opening the door for lower courts to once again halt enforcement of the law. The U.S. Supreme Court did not block the law itself, but rather sent the case back to a federal court in Austin. That court, United States District Court for the Western District of Texas, has already once issued an injunction blocking the law - though that decision was quickly overturned by a U.S. appeals court. The district court is expected to promptly issue a similar injunction while legal proceedings continue, though it is not clear just how quickly the district court will act. Until such an injunction is issued, though, the vast majority of abortions remain inaccessible in Texas.

Only one of two major challenges to the law will go forward, a case known as Whole Woman's Health v. Jackson. That case was brought forth by a group of Texas abortion providers, who are suing the state's judicial apparatus, which plays a major role in enforcing the law.

Amy Hagstrom Miller  [local copy], the founder and CEO of Whole Woman's Health, said in a statement to The 19th that the ruling gave the clinic hope for an end to the abortion ban in Texas. "The legal back and forth has been excruciating for our patients and gut-wrenching for our staff," she said. "We've had to turn hundreds of patients away since this ban took effect, and the U.S. Supreme Court's refusal to block the law means the heartbreak doesn't end. Our fight against this law is not over."

The U.S. Supreme Court dismissed the law's other major challenge, a lawsuit initiated by the United States Department of Justice. That case, United States of America v. Texas (2021), raised more complex constitutional questions about the sovereignty of the federal government.

Part of the case stemmed from the fact that Texas' Senate Bill 8 had a distinctive legal structure that had thus far insulated it from legal scrutiny. A six-week ban on abortion is generally seen as inconsistent with Roe v. Wade, the 1973 court case that guaranteed the right to an abortion up until a fetus can live outside the womb. But instead of criminalizing abortions after six weeks of pregnancy, SB 8 deputized private citizens to sue anyone who "aided or abetted" people seeking abortion after that mark. A successful plaintiff would win at least $10,000 in civil court and have legal fees reimbursed. This method of enforcement, the state argued, meant that all lawsuits targeting Texas or Texas officials were addressing the wrong defendants. The state solicitor general made that argument both in the case against Whole Woman's Health and in its arguments against the United States Department of Justice.

In its Whole Woman's Health decision, the U.S.Supreme Court held that some of the state officials named are in fact liable to be sued. The majority opinion, written by Associate Justice Neil Gorsuch, never mentions Roe v. Wade, or weighs in substantively on abortion rights. The 1973 case is mentioned in only two other opinions - one by Chief Justice John Roberts, and another by Associate Justice Sonia Sotomayor - that concur with part of the court's opinion but dissent from other parts.

The number of abortions performed in Texas has plummeted since the six-week ban took effect. About 2,000 people got an abortion in state in 2021-09, less than half the number performed the month prior. Experts had said they anticipated the number to fall further the longer the law stayed in effect. More up-to-date data isn't yet available [2021-12-10]. Simultaneously, clinics in neighboring states, including Oklahoma,   New Mexico,   Louisiana, and Kansas, have reported a tremendous upswell in Texas-based patients coming for abortions. Wait times at those clinics have grown longer.

The law  [Texas Heartbeat Act of 2021] had also inspired copycat legislation in other Republican-led states. The court's decision may change their approach, indicating to other states that a Texas-style law may not survive legal scrutiny after all.

Still, the ruling's impact is likely temporary. On 2021-12-01, the nine SCOTUS justices heard a separate abortion rights case out of Mississippi, examining a law that bans abortions after 15 weeks of pregnancy. Unlike the Texas law  [Texas Heartbeat Act of 2021], Mississippi's ban has never taken effect.

The state of Mississippi has argued that, in upholding the law, the U.S. Supreme Court should reverse the Roe v. Wade protection established almost 50 years ago (1973). A decision is not expected until summer [2022], but a majority of the SCOTUS justices appeared open to a ruling upholding Mississippi's law and possibly overturning Roe v. Wade entirely.

Depending on the nuances of such a decision, a six-week abortion ban like Texas' could have a far better chance of surviving legal challenges. If Roe v. Wade is entirely overturned, governments in more than 20 states - including Texas - have indicated they intend to ban abortion altogether.

In a Sunday speech at the McConnell Center at the University of Louisville, named for Sen. Mitch McConnell (R-Kentucky), only weeks after conservatives gutted abortion rights in Texas, Supreme Court Justice Amy Coney Barrett decried the view that the highest court in the land is politicized.

"My goal today is to convince you that this court is not comprised of a bunch of partisan hacks," Barrett said, per the Louisville Courier Journal, at a celebration of the McConnell Center's 30th anniversary. "The media, along with hot takes on Twitter, report the results and decisions.... That makes the decision seem results-oriented. It leaves the reader to judge whether the court was right or wrong, based on whether she liked the results of the decision."

When asked about the "shadow docket," under which the Supreme Court has issued decisions under a relative veil of secrecy, and the abortion decision that political experts say could be a harbinger of the overturning of Roe v. Wade, Barrett said it would be "inappropriate" to comment on the Supreme Court's decision regarding the Texas law, as other similar cases may soon be coming before the court.

Early this month, the Supreme Court refused to block a Texas law that effectively overturns Roe v. Wade in the state and has had a chilling effect on virtually all abortions in the state. The decision, handed down by conservative justices in the court, was widely panned as dangerous and cruel.

[ ... snip ... ]

---

• [DCReport.org, 2021-09-28] Jonathan F. Mitchell: Meet the Most Dangerous Man in America.  If You're a Woman, Gay, Trans or Just About Anyone but a Gun-Totting White Male, He Wants to Take Away Your Rights ... and, So Far, He's Winning.

• [CommonDreams.org, 2021-09-18] Architect of Texas Abortion Ban Takes Aim at LGBTQ+ Rights While Urging Reversal of Roe.  "Make no mistake, the goal is to force extreme, outdated, religious-driven values on all of us through the courts."  |  "... women can 'control their reproductive lives' without access to abortion; they can do so by refraining from sexual intercourse" -- Jonathan Mitchell  |  "All anti-LGBTQ and anti-choice views stem from the same desire to control bodies." -- Zack Ford,   Alliance for Justice

Advocates for reproductive freedom and LGTBQ+ equality on Saturday pointed to a legal brief filed in a U.S. Supreme Court case that could soon overturn as a crucial example of the broader goals of those fighting to end abortion rights across the United States. "It's never just been about fetuses. It's about controlling sex," tweeted Muhlenberg College assistant professor Jacqueline D. Antonovich, a historian of health and medicine.

Both Antonovich and Elie Mystal,   The Nation's justice correspondent, responded to a portion of the brief by New York University School of Law professor Melissa Murray that challenges previous rulings from the country's highest court on not only abortion but also LGBTQ+ rights. "Of course" the so-called "right to life" movement is also coming after cases that established key LGBTQ+ protections, said Mystal, "because it's never about 'life' and always about 'Christian fundamentalism.'"

The amicus brief (pdf) that Murray highlighted - co-authored by the architect of a new abortion ban in Texas - urges reversing Roe v. Wade, the landmark 1973 ruling that affirmed the constitutional right to pre-viability abortions, and the related 1992 case Planned Parenthood v. Casey.

The brief also takes aim at , a 2003 case that overturned homophobic state sodomy laws, and the 2015 equal marriage case Obergefell v. Hodges, suggesting that the court should not "hesitate to write an opinion that leaves those decisions hanging by a thread. Lawrence and Obergefell, while far less hazardous to human life, are just as lawless as Roe."

Zack Ford of the progressive group Alliance for Justice   said Saturday [2021-09-18] that "this is hardly surprising. Conservatives know they've got the Supreme Court in the palm of their hands and they'll ask for anything and everything, including the return of sodomy laws. Remember, ALL anti-LGBTQ and anti-choice views stem from the same desire to control bodies."

[ ... snip ... ]

The legal mind behind S.B. 8, Jonathan F. Mitchell, "has spent the last seven years honing a largely below-the-radar strategy of writing laws deliberately devised to make it much more difficult for the judicial system - particularly the Supreme Court - to thwart them," according to The New York Times. A former Texas solicitor general and clerk to the late Supreme Court Justice Antonin Scalia, Jonathan Mitchell also co-authored the legal brief attacking Lawrence and Obergefell. His brief for the group Texas Right to Life - just one of several anti-choice filings submitted to the high court in late July 2021 - also states that "women can 'control their reproductive lives' without access to abortion; they can do so by refraining from sexual intercourse.'"

[ ... snip ... ]

• [MotherJones.com, 2021-09-13] Amy Coney Barrett and Mitch McConnell Want You to Believe the Unbelievable.  The Supreme Court justice - and the man responsible for pushing through her hyper-political nomination - insist the high court isn't political.

---

• [JacobinMag.com, 2021-09-14] The Supreme Court Justices Really Are "A Bunch of Partisan Hacks".  Amy Coney Barrett says Supreme Court justices must be "hyper vigilant" about their biases - less than four months after Barrett decided to participate in a major climate case against Shell Oil, the fossil fuel giant that employed her father [Michael E. Coney] for nearly three decades.

War is peace, freedom is slavery, and the Supreme Court is a dispassionate nonpartisan branch of government free of bias - this is the Orwellian fable that Justice Amy Coney Barrett is now asking Americans to believe.

And Barrett is asking us to believe it not merely after the court's wildly partisan ruling on abortion rights, but also just months after she promoted climate denialism to a national audience, and refused to recuse herself as she helped secure a legal victory for the fossil fuel giant that employed her father [Michael E. Coney] for decades.

This is a tale not just of cartoonish hypocrisy but also of deception - a frantic attempt to try to prevent more of the country from realizing the court is a corporate star chamber that has become one of the most powerful partisan weapons in American politics.

First, the blatant hypocrisy: In an event that seems torn out of the pages of the Onion, Barrett this weekend appeared with Senate Minority Leader Mitch McConnell (R-KY), at an event to celebrate a University of Louisville facility he named after himself. After being introduced by the most partisan Senate leader in American history, Barrett declared that the Supreme Court - which now includes three people who worked directly on the Republican campaign to pilfer the 2000 election - "is not comprised of a bunch of partisan hacks."

If that wasn't absurd enough, Barrett then declared that judges must be "hyper vigilant to make sure they're not letting personal biases creep into their decisions, since judges are people, too."

That demand for ethical vigilance came less than four months after Barrett discarded her own past recusal list and opted to participate in the adjudication of a major climate case against Shell Oil - the fossil fuel giant that employed her father for nearly three decades. Barrett declined to recuse herself even though an amicus brief was filed in the case by the American Petroleum Institute, the lobbying group that her father helped steer - and even though one prominent supporter of the case said her father could be subpoenaed for a deposition because of his "direct knowledge of and operational involvement in how Shell managed climate threats."

But no recusal came - and with Barrett's help, the Supreme Court sided with Shell and other fossil fuel giants, delivering a big procedural win for the oil and gas industry.

Barrett's participation in that case followed her Senate confirmation hearing, in which she refused to acknowledge the undisputed science of climate change (and in which flaccid Democrats decided not to bother to push her on recusal). She cast her position as an attempt to avoid being opinionated about the matter, but of course refusing to stipulate basic scientific fact is the opposite of dispassionate. It is an ideological and partisan expression of Republican orthodoxy wholly disconnected from empirical data.

And in case you thought Barrett's zealotry, hypocrisy, and conflicts of interest are only germane to one isolated case, remember that in the coming years, the fossil fuel industry will be asking the high court to shield it from legal consequences for its climate crimes.

[ ... snip ... ]

• [RewireNewsGroup.com, 2021-09-10] Biden Administration Sues Texas: Abortion Ban in 'Open Defiance of the Constitution'.  The lawsuit seeks to permanently block Texas' extreme abortion ban from being enforced, including by private citizen "bounty hunters."

Americans woke up last Wednesday morning to a new reality: Roe v. Wade, the 1973 landmark legislation granting a woman a right to an abortion, was violently under attack through the passage of a new "Heartbeat bill" in Texas [Texas Heartbeat Act of 2021].

That law - which bans abortion as early as six weeks into pregnancy, makes no exception for rape or incest, and allows private citizens to sue anyone who performs or aids a woman in getting an abortion - is the first so-called Heartbeat bill to have become law and actually be enforced. The Supreme Court did not swoop in and prevent the law's enforcement as some had hoped: That evening, the top court allowed the law to stand in a 5-4 decision, with the five right-wing lawmakers firmly in camp against Roe simply claiming it was a procedural issue that abortion providers had not addressed, voting in effect for Texan women to lose the right to abortion provided under Roe.

For Janet Porter, the Texas law was a dream come true. The longtime religious-right activist took to Rumble, a posterboard of her book, "A Heartbeat Away," propped up in the background as she announced the news. "That makes Texas the first state in the nation to actually enforce their heartbeat law of the 14 states who have passed them," she told the camera.

[Wikipedia, 2021-09-07] Janet L. Folger Porter (born October 13, 1962) is an American Pro-Life activist and author. Porter founded the now defunct website ReaganBook and, in 2003, conservative Christian ministry Faith2Action. Porter is most known promoting the pro-life movement and the protection of fetuses in the womb. She also is an outspoken Christian, who seeks to conservative Christian values. In 2018, the Southern Poverty Law Centre designated Faith2Action as a hate group for its anti-LGBT stance. In 2017, she served as a spokesperson for Roy Moore in his campaign for the United States Senate special election in Alabama, 2017, drawing media attention for repeatedly refusing to answer direct questions about the candidate's publicly stated beliefs. She was the National Director for the Center for Reclaiming America, during 1997 to 2002, and an Ohio Right to Life legislative director. Porter has also worked for campaigns supporting George W. Bush for president;   Mike Huckabee for president; Mandate to Save America;  Birther Movement; and Risk Factors. ...

[Wikipedia, 2021-09-07] ... Roy Stewart Moore (born February 11, 1947) is an American lawyer and politician who served as the 27th and 31st chief justice of the Supreme Court of Alabama from 2001 to 2003 and again from 2013 to 2017, each time being removed from office for judicial misconduct by the Alabama Court of the Judiciary. ... Roy Moore is considered an advocate of far-right politics. He has attracted national media attention and controversy over his views on race, homosexuality, transgender people, and Islam, his belief that Christianity should order public policy, and his past ties to neo-Confederates and white nationalist groups. Moore was a leading voice in the birther movement, which promoted the false claim that president Barack Obama was not born in the United States. This movement has promoted the claim before, during, and since Obama's time in office. He founded the Foundation for Moral Law, a non-profit legal organization from which he collected more than $1 million over five years. On its tax filings, the organization indicated a much lesser amount of pay to Moore. ...

[ ... snip ... ]

The five justices who upheld Texas's anti-abortion law in the middle of the night this week insisted that their hands were tied: Texas had invoked sovereign immunity, and abortion providers had not proved that the state was wrong. Above all, the majority warned people not to overreact. Women in Texas might not be able to get an abortion anymore, and abortion providers might have already shut down, but worry not. The Supreme Court had not drawn "any conclusion about the constitutionality of Texas's law."

For anyone paying attention, the upshot of this was clear. For starters, Texas lawmakers had not kept their intentions secret: They wanted to ban almost all abortions and skirt the consequences. The law raised "complex and novel" "procedural questions," according to the Court majority, but only because the law's designers had homed in on a creative strategy for achieving their goals.

That the Court pretended this wasn't about the fate of abortion rights tells us that the justices may be ready to strike down Roe v. Wade - but are less prepared for the havoc such a decision would wreak. Reversing Roe would not be a mere part of the legacy of John Roberts's Court and the justices sitting on it - it would define that legacy.

And it could have enormous institutional and political consequences: Court reform - which remains a matter of abstract inquiry rather than an earnest legislative push - would be more seriously on the table. Pro-abortion-rights voters in 2022 and 2024 could make their discontent known at the polls.>

[ ... snip ... ]

In a split decision issued late on Wednesday night [2021-09-01], the United States Supreme Court ruled that it would not place a stay on a Texas law designed to limit abortion in the state to no later than six weeks after a person becomes pregnant.

Chief Justice John Roberts, a conservative, joined all three liberal bloc justices in dissenting with the majority opinion. The five remaining justices - including all three appointees of former President Donald Trump, who vowed to nominate anti-choice picks to the Court - simply said that they were unable to decide on the Texas law, based on its framework.

The law in Texas is unique in that it doesn't put the state in charge of the enforcement of the highly restrictive ban. Rather, any individual is allowed to sue someone in the state if they believe that the person provided abortion services or otherwise helped another person to access them.

The design of the law, in theory, allows Texas to say it cannot be sued over it because it would be a civil suit brought by one person against another - the state itself would not be involved in enforcing the law. The Supreme Court's conservative majority sided with that belief.

The opinion of the Court was a single paragraph long and not signed by any of the justices who ruled against intervention in the Texas law. It stated that a case had not been made by litigants to address the "complex and novel" procedural questions regarding the new statute.

Justice Sonia Sotomayor, penning a blistering dissent for the Court, objected to those views from the majority.

"The Court's order is stunning," Justice Sonia Sotomayor wrote. "Presented with an application to enjoin a flagrantly unconstitutional law engineered to prohibit women from exercising their constitutional rights and evade judicial scrutiny, a majority of Justices have opted to bury their heads in the sand."

Texas's law "flouts nearly 50 years of federal precedents" set by the Supreme Court and other lower courts, the associate justice added, noting that the ruling on Wednesday night [2021-09-01] "rewards tactics designed to avoid judicial review," and suggesting that other states in the future might try to replicate it.

[ ... snip ... ]

In a 2018 speech announcing her decisive vote in favor of confirming right-wing judge Brett Kavanaugh to the Supreme Court, Republican Sen. Susan Collins of Maine insisted - despite the abundance of evidence to the contrary - that he would value legal precedent and not support efforts to overturn Roe v. Wade.

But less than three years later, Kavanaugh effectively did just that by joining four of his fellow conservative justices late Wednesday [2021-09-01] in voting to leave in place Texas' six-week abortion ban, the most restrictive in the nation. While the court's 5-4 majority claimed in a brief unsigned order that its decision "is not based on any conclusion about the constitutionality of Texas' law," analysts argued that the conservative justices' move guts Roe v. Wade "under the cover of a procedural punt."

In the weeks ahead of her vote to confirm Kavanaugh - a Trump nominee who was accused of sexual assault - Collins repeatedly expressed her belief that the judge "reveres our Constitution" and would not approve of overturning Roe, a 1973 decision that established abortion as a constitutional right.

A compilation of Collins' remarks posted online in the wake of the Supreme Court's Wednesday [2021-09-01] order offers a glimpse at some of the Maine senator's past comments touting Kavanaugh's expressed commitment to keeping Roe intact.

[ ... snip ... ]

While the big news from Texas this week was about the Supreme Court upholding the state's ban on essentially all abortions in the state, a number of other restrictive laws that advance a far right Republican agenda also went into effect the same day.

A total of 666 new laws were rolled out on Wednesday [2021-09-01]. Many of them, if they had been implemented individually, would have raised the alarm for Democrats and progressives. One law, for instance, criminalizes homelessness by disallowing people without homes from camping in a public location, making the act a misdemeanor with a $500 fine. Another law will make it illegal for people to hire workers for sex, which critics say will only exacerbate dangerous conditions for sex workers.

Many of the laws that went into effect on 2021-09-01 were a direct backlash against the Movement for Black Lives that gained momentum across the country over the past year, along with the general movement for racial justice. One bill will create financial penalties for medium to large municipalities that decline their police departments' budgets yearly.

Another bill that Republican Gov. Greg Abbott signed in June 2021 bans the teaching of critical race theory in K-12 schools. The scholarly theory, deliberately misinterpreted and politicized by the GOP, is not taught in grade schools. However, the intent of the law is to discourage educators from teaching American history without a white supremacist lens or talking about race in school. It bars teachers from giving "deference" to either side of a conflict while teaching about historical events.

One bill, which again appears to be a backlash against last year's mass uprisings for racial justice, makes it a felony for protesters to block a road while protesting. This will lead to harsher penalties for left-wing protesters who already face disproportionate punishment and violence from police when they demonstrate.

A law that bans establishments from requiring a COVID-19 vaccine before entry also went into effect on Wednesday [2021-09-01] after having been signed by Greg Abbott earlier this year. The punishment for requiring vaccinations is especially harsh on businesses: a business could be denied state contracts or even lose their license if they are found requiring customers to be vaccinated.

And then, of course, Texas also implemented a law that essentially overturns Roe v. Wade in the state, outlawing abortions at a point so early in the pregnancy that most people don't even realize that they are pregnant. It will do untold damage to the millions of people in the state that it affects - especially low-income people who don't have the wherewithal to go out of state to seek abortion care.

[ ... snip ... ]

In Texas, 666 new laws go into effect Wednesday [2021-09-01] passed by the Republican-led state Legislature in the 2021 regular session. Among them are top conservative priorities passed in other red states around the country this year, but none as big as Texas with more than 29 million residents. ... Here are some of the major new laws that do take effect Wednesday in Texas:

• Re; article title ("666"): Number of the beast. The number of the beast is associated with the Beast of Revelation in chapter 13, verse 18 of Book of Revelation. In most manuscripts of the New Testament and in English translations of the Bible, the number of the beast is six hundred and sixty-six

• New voting laws. ... One bans Texas voters from registering using a post office box as their address, another allows the secretary of state to cut funds for voter registrars that fail to remove certain people from the rolls, and one more makes it harder to apply for a mail-in ballot for medical reasons. There are also other, less controversial voting laws. One allows people to track their mail-in ballots, and another makes it clear who can be in a polling place: voters, election workers, poll watchers, election judges and law enforcement.

• Cardiac activity abortion ban. Texas' new abortion law, which went into effect Wednesday [2021-09-01] after the U.S. Supreme Court did not weigh in, could prevent the vast majority of abortions in the state. It prohibits abortions once cardiac activity is detected in an embryo. That can happen as early as about six weeks, before many people even know they are pregnant. Unlike other similar bills across the country, Texas' law doesn't set criminal penalties for violating the ban. Instead, the law allows private citizens to sue anyone who helps someone get an abortion. ...

• Banning critical race theory. ... Nikki Jones, who teaches African American studies at the University of California, Berkeley, described critical race theory as a way to understand how race has been used to influence laws in the United States. "It's a way to see race," Jones says, "to see understandings of race, to see racism, in places where it may not otherwise on the surface of it be apparent." The new law takes on critical race theory without ever naming it. House bill sponsor Rep. Steve Toth, a Republican, says the new law is aimed at teaching complex subjects such as slavery and racism without making white children feel guilty. "We need to teach about the ills, but you can't blame this generation," Toth says. "Kids are being scapegoated." ...

• Felonies for protesters blocking roads and hospitals. Texas protesters could face felony charges for blocking a roadway or entrance to a hospital after a new law takes effect Wednesday [2021-09-01]. ... In Texas, protesters had faced a misdemeanor with up to six months in jail for that offense. The new law increases the penalty to two years. ...

• Permitless carry. ... The new law allows anyone who can legally own a firearm to carry it in public, as long as it's in a holster. That's a first since Reconstruction. Texas is now the 20th state to enact what some call "constitutional carry" - something supporters say is a right granted by the Second Amendment. ...

• A ban on homeless encampments. Another new law would ban homeless encampments across the state, making it illegal to set up shelter or store belongings for an extended period of time, creating a new class C misdemeanor punishable by a fine of up to $500. The law also limits cities from using parks for temporary camps.

• [ ... snip ... ]

Last night, the Supreme Court faced an unprecedented emergency application. Unless the Court acted, abortion would be functionally illegal in Texas.

In May 2021, the state had adopted a version of a "Heartbeat bill" that went into effect today. So-called heartbeat bills prohibit abortions once a physician can detect fetal cardiac activity, usually around the sixth week of pregnancy, before most people know that they are pregnant. Texas lawmakers had considered such a bill before but balked at the prospect of a possible loss in court - and the thought of forking over legal fees to Planned Parenthood. S.B. 8, the law that now prevails, promised to give conservative lawmakers everything they wanted: the ability to ban abortion with none of the risk.

The key, as Texas lawmakers saw it, was not to criminalize abortions. Instead, the state has authorized private citizens in the state - quite literally any  private citizen - to file lawsuits against anyone who performs or "knowingly ... aids or abets" an abortion after the sixth week of pregnancy. When plaintiffs in these suits succeed - and many inevitably will - they will receive at least $10,000 from defendants and an injunction preventing a provider from performing any more abortions after six weeks of pregnancy.

Relying on individual activists to flood the courts with lawsuits might seem riskier for anti-abortion-rights lawmakers (the state would need to find a supply of willing plaintiffs rather than doing the job itself) than an outright ban, but the opposite is true. Texas designed its bill to make it nearly impossible to challenge in court.

That's because state lawmakers and judges can shield themselves using a doctrine called "sovereign immunity," which typically prevents someone seeking to block a state law from suing the state itself. The Supreme Court created an exception to that rule in a 1908 case called Ex parte Young: Someone challenging the constitutionality of a law can sue the state officer charged with enforcing it. But in Texas, there arguably is no such officer, because only private citizens can sue to enforce the law. Abortion providers could wait to get deluged in court, find themselves buried under $10,000 damage awards, and argue that those penalties are unconstitutional. But virtually no doctor seems ready to do that - the state's providers have responded to the law by no longer offering abortions after the sixth week of pregnancy.

[ ... snip ... ]

• [NPR.org, 2021-08-20] Appeals Court Upholds A Texas Law That Bans A Common Abortion Procedure.  A Texas law outlawing an abortion method commonly used to end second-trimester pregnancies has been upheld by a federal appeals court in New Orleans.

Additional Reading: Miscellaneous

The Supreme Court of the United States announced on Tuesday [2022-02-22] that it would take up a case involving a Christian web designer who claims that Colorado's anti-discrimination law  [Colorado Anti-Discrimination Act] prevents her from denying her services to same-sex couples. At first glance, 303 Creative LLC v. Elenis appears to be the latest effort to get the U.S. Supreme Court justices to decide whether religious freedom claims can trump civil rights laws that protect gay and transgender Americans from discrimination by private businesses. But it's actually a much stranger case than that - and potentially even more consequential.

The plaintiff, Lorie Smith, is a Colorado-based artist who started her own web-design firm named 303 Creative. Lorie Smith designs websites for churches, small businesses, and conservative elected officials. In her petition, Smith told the justices that she "seeks to bring glory to God by creating a unique expression that shares her religious beliefs, including her faith's view that marriage is between one man and woman, and she cannot create messages inconsistent with her Christian faith" [Christian right].

[ ... snip ... ]

At first glance, the U.S. Supreme Court case strongly resembles the 2018 case Masterpiece Cakeshop v. Colorado Civil Rights Commission. That dispute also revolved around a clash between Colorado's anti-discrimination law  [Colorado Anti-Discrimination Act], a business owner's religious beliefs, and a customer's sexual orientation: the Colorado Civil Rights Commission had sanctioned a Christian baker who declined to bake a cake for a same-sex couple. In its eventual ruling, however, the U.S. Supreme Court avoided the underlying clash between LGBTQ rights and religious freedom claims by ruling that the Colorado Civil Rights Commission hadn't given the baker a fair, neutral consideration.

But there are also some notable distinctions between the two disputes. For one, the Masterpiece Cakeshop case arose after the baker had directly denied service to a particular same-sex couple. Lorie Smith, on the other hand, preemptively sued the Colorado Civil Rights Commission to get a court to block it from enforcing the act against her. "303 Creative filed its complaint despite failing to identify any investigation into 303 Creative's conduct or any complaint filed against the company," the state of Colorado told the court. "And no actual customer has requested the company to design any specific wedding website. Rather, the company sued seeking a broad declaration that the act violates the company's free speech and free exercise rights under the First Amendment to the United States Constitution ("First Amendment").

A federal district court in Colorado ruled in favor of the Colorado Civil Rights Commission in Lorie Smith's case, concluding that the Colorado Anti-Discrimination Act does not violate the First Amendment's  Freedom of speech and of the press clause  [Free Speech Clause], or the Free Exercise Clause  [free exercise of religion]. The United States Court of Appeals for the Tenth Circuit upheld that ruling last July [2021-07]. "Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace," Judge Mary Beck Briscoe   wrote for the court.

In a dissenting opinion, Judge Timothy Tymkovich opened with a quote from George Orwell: "If liberty means anything at all, it means the right to tell people what they do not want to hear." Judge Timothy Tymkovich framed Lorie Smith's plight as a case of government censorship. "Though I am loathe to reference Orwell, the majority's opinion endorses substantial government interference in matters of speech, religion, and conscience," Tymkovich wrote. "Indeed, this case represents another chapter in the growing disconnect between the Constitution [Constitution of the United States]'s endorsement of pluralism of belief on the one hand and antidiscrimination laws' restrictions of religious-based speech in the marketplace on the other. It seems we have moved from 'live and let live' to 'you can't say that.'"

The insinuations that Lorie Smith was the victim of oppression did not stop there. Timothy Tymkovich made repeated allusions to the genuineness of Smith's religious beliefs, making an implicit argument that the majority felt the need to refute explicitly. "We fail to see how sincerity or good faith should excuse them from Colorado Anti-Discrimination Act," Mary Beck Briscoe wrote. "intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services. For this reason, it is unclear to us why the dissent places such repeated emphasis on 'good faith.'"

[ ... snip ... ]

Indeed, while Lorie Smith's harms are speculative, a U.S. Supreme Court ruling in her favor could have very real consequences for gay Americans and transgender Americans. Anti-discrimination laws help ensure that Americans can shop at the same stores, use the same services, and participate in everyday life to the same degree as everyone else., no matter their differences. Carving out a broad exception to those protections could relegate gay and transgender Americans to a second-class status of sorts in parts of this country [United States]. It is quite a leap to suggest - as Tenth Circuit Court of Appeals judge Timothy Tymkovich does - that this would strengthen American pluralism instead of weakening it.

Perhaps most ominously, the U.S. Supreme Court appears to be queuing up a much broader look at this issue than it had in Masterpiece Cakeshop v. Colorado Civil Rights Commission. That dispute rested squarely on the religious freedom dimensions of the case. When Lorie Smith first launched her case [303 Creative LLC v. Elenis], this was the aspect on which she largely focused. But the justices tinkered with the question that she asked them to resolve when it agreed on Tuesday [2022-02-22] to hear her case. Her original petition asked the court to decide "whether applying a public-accommodation law to compel an artist to speak or stay silent, contrary to the artist's sincerely held religious beliefs, violates the Free Speech Clause or Free Exercise [of religion] Clause of the First Amendment."

In its Tuesday [2022-02-22] orders, the U.S. Supreme Court justices said they would take up the case only to decide "whether applying a public-accommodation law to compel an artist to speak or stay silent violates the Free Speech Clause of the First Amendment." Why the change? The court appeared to jettison the Free Exercise Clause question to avoid resolving the second part of Lorie Smith's request - which had asked them to revisit Employment Division v. Smith  [note: plaintiff Alfred Leo Smith, not Lorie Smith]. The justices declined to overturn that precedent as recently as last year [2021] in Fulton v. City of Philadelphia - and they appear to have no appetite to revisit it so soon. At the same time, the free-speech-only focus means the case could affect anti-discrimination laws far beyond the nexus of LGBTQ rights and religious freedom. How far the justices could go will become clearer when they hold oral arguments next fall [2022].

White House counsel   Dana Remus is working around the clock to help President Joe Biden make history - logging hours on the phones, meeting with Republicans and supervising background checks so he can fulfill his promise to nominate a Black woman to serve on the Supreme Court of the United States. In the words of White House Chief of Staff   Ron Klain, Dana Remus is "the quarterback of this whole process."

[ ... snip ... ]

The right-wing majority on the Supreme Court continues its run of nullifying constitutional rights by shadow docket  [main subsection], while insisting that it is doing no such thing. On Monday [2022-02-07], the Supreme Court blocked a ruling - written by a panel of three federal judges, two of whom were appointed by President Donald Trump - that found that Alabama had violated the Voting Rights Act of 1965 when Alabama drew a congressional map with one majority-Black district out of seven rather than two, in a state where Black people make up more than a quarter of the population. Five of the Supreme Court justices disagreed with the lower court's decision, but only Associate Justice Brett Kavanaugh explained his rationale in an opinion, joined by Associate Justice Samuel Alito - arguing that complying with the Fifteenth Amendment to the United States Constitution would just be too much work.

"Running elections statewide is extraordinarily complicated and difficult. Those state elections require enormous advance preparations by state officials and local officials, and pose significant logistical challenges," Brett Kavanaugh wrote. "The District Court's order would require heroic efforts by those state and local authorities in the next few weeks - and even heroic efforts likely would not be enough to avoid chaos and confusion."

The primary is in 2022-05 and the general election is in 2022-11 [2022 United States elections]. As the attorney Steve Vladeck writes at Slate, the Supreme Court has effectively redefined "close to an election" to apply to "all election cases," making it virtually impossible to ever challenge gerrymanders that violate the Fifteenth Amendment's protections against discriminatory voting practices before ballots are cast. If the Supreme Court ustices were genuinely concerned about the time window, they could have pushed the start of early voting back from late March - a common solution in redistricting cases - but that wouldn't have given Alabama Republican the advantage they were demanding.

Why so desperate? Redistricting decisions could determine which party holds the House after the midterms. The Roberts' Court's evisceration of voting-rights protections has set off a race to the bottom, in which both Democrats and Republicans are attempting to election-proof their districts in states they control. This is horrible for democracy, because it leads to politicians ignoring their own constituents, who in turn have little recourse against lawmakers for doing so. It is also the system conservative activists wanted, and the one the right-wing justices ushered into being. "When Kavanaugh says that the challenge is too close to the election," the legal journalist Elie Mystal writes at The Nation  [Elie Mystal  |  local copy], "he means that literally any challenge to any new, racist state districting map cannot be heard until at least one election cycle has taken place under the racist maps." Convenient if you're a Republican trying to win back the White House.

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How conservative is the Supreme Court? To some observers, it is unambiguously anchored on the right, eager to write its ideological vision of the Constitution into the fabric of American law. To others, there are glimmers of moderation: rulings that fall short of right-wing activists' ambitions, rejections of high-profile cases, and the faint possibility that a center-right bloc of three justices could end up steering the court into the next few decades. Some observers even touted the possibilities of a 3-3-3 court instead of a 6-3 court toward the end of the last term.

A new analysis  [local copy  |  methodology] by Take Back the Court, a liberal legal advocacy group, suggests that the Supreme Court is even more conservative in its goals and ambitions than its rulings indicate. Almost half of the court's overall docket last term was made up of conservative cases - cases where the justices had a chance to move the law further to the right. "This study really shows how the court's conservative supermajority is using its docket-setting power to stack the deck in favor of conservative outcomes," Sarah Lipton-Lubet  [LinkedIn: Sarah Lipton-Lubet  |  local copy], Take Back the Court's  executive director, told me.

Not every case heard by the Supreme Court falls into neat ideological lines, of course. Water disputes between Florida and Georgia, like the one heard by the justices in 2021-04, can't be neatly classified as "liberal" or "conservative." The report classified just 31 out of the 53 argued cases in the 2020-2021 term as either liberal or conservative. Of those cases, however, more than three-quarters could be defined as conservative. Most of them involved economics-related cases or criminal justice cases. In areas like voting rights and religious freedom, there were no cases where the court had a chance to move the law in a liberal direction.

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U.S. Supreme Court Associate Justice Stephen Breyer is retiring after serving more than two decades on the nation's highest court, U.S. Supreme Court and Biden administration sources tell NPR. Breyer - professorial, practical, and moderately liberal - wrote many of the U.S. Supreme Court's legally important but less glamorous decisions and sought - behind the scenes - to build consensus for centrist decisions on a conservative court.

Stephen Breyer's retirement gives President Joe Biden his first opportunity to name a new justice to the court. During the 2020 United States presidential election, Biden pledged to name an African American woman to the Supreme Court, if he got the chance. The two leading contenders are said to be federal judge Ketanji Brown Jackson - who was on President Barack Obama's shortlist for the Supreme Court in 2016 - and Supreme Court of California justice Leondra Kruger - who served as assistant, and then deputy solicitor general in both Democratic and Republican administrations prior to her nomination to California's highest court. Both women are young - in terms of Supreme Court appointment- and both have stellar legal credentials.

Stephen Breyer's decision to retire is a relief to liberal Democrats after seeing Republicans push through three Trump Supreme Court nominees using some unprecedented tactics. Indeed last year [2021], some liberal groups publicly pressed Stephen Breyer to retire, even demonstrating in front of the Supreme Court - Breyer, however demurred to resign. In an interview with NPR, Breyer said that the decision on when to retire "has many complex parts to it. I think I am aware of most of them and will consider them." His decision to remain for another year [from 2021] was likely due in large part to the major issues the court was about to confront - abortion, guns, separation of church and state, and potentially affirmative action. These are all matters that Breyer has strong feelings about, and he thought that his 27 years on the court might enable him to prevent a wild swing to the right. In the 2020 term Breyer had played just that role; but this term - when compromise seemed to elude even his skilled hand - the 83-year-old justice decided it was time to step down. As he put it in an NPR interview in 2021-09: "I do not want to stay on the Supreme Court until I die." The court's term ends this summer [2022], and it's expected Breyer will retire then.

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It was pretty jarring earlier this month [2022-01] when the justices of the U.S. Supreme Court took the bench for the first time since the omicron surge  [SARS-CoV-2 Omicron variant] over the holidays. All were now wearing masks. All, that is, except Justice Neil Gorsuch. What's more, Justice Sonia Sotomayor was not there at all, choosing instead to participate through a microphone setup in her chambers. Sonia Sotomayor has diabetes, a condition that puts her at high risk for serious illness, or even death, from COVID-19. Sonia Sotomayor has been the only justice to wear a mask on the bench since last fall [2021] when - amid a marked decline in COVID-19 cases [COVID-19 pandemic] - the justices resumed in-person arguments for the first time since the onset of the COVID-19 pandemic.

Now, though, the situation had changed with the omicron surge, and according to court sources, Sonia Sotomayor did not feel safe in close proximity to people who were unmasked. Chief Justice John Roberts - understanding that concern, in some form - asked the other justices to mask up. They all did, except Neil Gorsuch - who, as it happens, sits next to Sotomayor on the bench. Neil Gorsuch's continued refusal to wear a mask since then has also meant that Sonia Sotomayor has not attended the justices' weekly conference in person, joining instead by telephone.

Neil Gorsuch, from the beginning of his tenure, has proved a prickly justice, not exactly beloved even by his conservative soulmates on the court. At Gorsuch's first sitting in 2017, he sought to dominate the argument and repeatedly suggested that a complex case, involving conflicting provisions, was really very simple. "Wouldn't it be easier if we just followed the plain text of the statute?" Gorsuch asked over and over. "What am I missing?" A lot, said Gorsuch's colleagues, both liberal and conservative. "This is unbelievably complicated," lamented conservative Justice Samuel Alito. Whoever wrote the statute must be "somebody who takes pleasure tearing the wings off flies," Alito said, provoking loud snickers on the bench.

The court's liberals are upset

Of course, anybody who regularly watches Supreme Court arguments is used to seeing some testy moments in both big and little cases. But you don't have to be a keen observer these days to see that something out of the ordinary is happening. Some of it is traceable to the new conservative supermajority, including three Trump appointees, a court that may well end up more conservative than any since the 1930s. It's a majority that has evidenced less and less respect for precedent, or the notion of deference to Congress in setting policy. So it's not surprising that the court's three liberal justices would be upset. It is the degree of the upset, though, that telegraphs something different. When the court in 2021-11 seemed prepared to overturn Roe v. Wade, Justice Sonia Sotomayor had some well placed verbal jabs at the ready.Noting that 15 justices over 50 years have reaffirmed the basic framework of Roe v. Wade, and only four have dissented, Sotomayor asked this pointed question: "Will this institution survive the stench that this creates in the public perception that the Constitution and its reading are just political acts?"

At oral argument, Justice Elena Kagan, one of the court's best questioners, sometimes takes a different approach. She just shuts down, rather than alienate her colleagues. Still, Kagan's anger is often palpable, the color literally draining from her face. And Justice Stephen Breyer on occasion just holds his head. Neither, however, could contain themselves 12 days ago [2022-01] at the argument testing the government's vaccine-or-test mandate for large employers [COVID-19 vaccination mandates in the United States], adopted under provisions of the U.S. Occupational Safety and Health Act. Stephen Breyer called the challengers argument "unbelievable." And Elena Kagan pointedly observed, "This is a pandemic in which nearly a million people have died, by far the greatest public danger that this country has faced in the last century ... and this is the policy that is most geared to stopping all this."

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The Supreme Court has decided that the constitutional right to an abortion doesn't matter anymore, that 50 years' worth of federal precedent should be abandoned. And there's only one justice who is appropriately outraged about it: Sonia Sotomayor. Twice over the last eight weeks, the Supreme Court was offered an opportunity to stop a patently unconstitutional law from taking effect and hurting millions of pregnant Texans. Twice it refused to do so.

The law, SB 8, is ridiculous. Republicans in Texas enacted a law that openly violates the Constitution and infringes on a constitutional right, and rather than try to defend their actions in Court, they crafted a sneaky mechanism so that the law could take effect and its architects could avoid a court challenge. SB 8 is a near-total ban on abortions at approximately six weeks' gestation, which is before many people know they are pregnant. Such bans are unconstitutional under Roe v. Wade and Planned Parenthood v. Casey - the Supreme Court's own precedent.

Texas knows this. That's why they crafted the bizarre bounty hunter enforcement mechanism: so they could keep their hands clean and make it difficult for anyone who wanted to challenge the law to find a court that would have the jurisdiction to do so. The conservative on the Court also know this. There is absolutely no legitimate reason that the Court has let this law take effect. And yet here we are heading into November, and abortion access has been functionally nonexistent in Texas for nearly two months.

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"I think what people are missing is that they're coming for the 14th Amendment." Laurie Bertram Roberts, Executive Director of the Yellowhammer Fund and a seasoned reproductive justice advocate in Mississippi, surprised me when she said that.

She's right, of course, but the way she phrased it struck me. Oftentimes people will warn that conservatives are coming for your birth control. Or for the right of same-sex couples to marry and adopt or foster children without discrimination. But "they're coming for the 14th Amendment" means more than that.

It means conservative Christian evangelicals have their sights set on dismantling the 14th Amendment, and they're not just coming for what law nerds call substantive due process rights. Those are rights that relate to intimate areas of people's lives: the fundamental right to privacy, out of which springs the right to abortion and the right to contraception, along with other rights related to childbirth, childrearing, marriage, and sex.

It means they're coming for the part of the United States Constitution that is supposed to level the playing field for systematically minoritized and oppressed people. It's not just due process rights that conservatives are after - it's the very basis of the right to equal protection, too. They want to strip 14th Amendment protections from people who are alive and breathing and confer those protections on fertilized eggs, embryos, and blastocysts.

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Fourteenth Amendment to the United States Constitution

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments. Often considered one of the most consequential amendments, it addresses citizenship rights and equal protection under the law and was proposed in response to issues related to former slaves following the American Civil War. The amendment was bitterly contested, particularly by the states of the defeated Confederacy, which were forced to ratify it in order to regain representation in Congress. The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark Supreme Court decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage. The amendment limits the actions of all state and local officials, and also those acting on behalf of such officials. ...

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In recent years, political overreach by elected Republicans and judicial overreach by the far-right justices they have gotten onto the Supreme Court have made more and more Americans aware of the critical importance the Court plays in our lives. Among other things, the ultraconservative justices have:

• opened our elections to unlimited spending by corporate interests;

• dismantled the central mechanism of the Voting Rights Act that prevented discriminatory voter suppression laws from going into effect;

• given the green light to hyper-partisan gerrymandering schemes that subvert democracy;

• made it easier for companies to violate the rights of working people and to exercise abusive monopoly power;

• authorized the Trump administration's discriminatory Muslim ban;

• redefined religious liberty from a shield to protect religious exercise into a sword to harm others;

• undermined precedents upholding the ability of federal agencies to adopt vital health and safety regulations; and

• threatened to eliminate the constitutional right to abortion.

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