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Supreme Court Of The United States

The Supreme Court of the United States: A Reluctant Arbiter of a Nation's Fate

"SCOTUS" redirects here. For other uses, see SCOTUS (disambiguation).

The Supreme Court of the United States, often abbreviated as SCOTUS (a moniker that sounds less like a venerable institution and more like a forgotten deity), stands as the highest court within the intricate tapestry of the federal judiciary of the United States. Its authority is, in theory, absolute within its domain, wielding ultimate appellate jurisdiction over every case originating from U.S. federal court circuits. Beyond that, it extends its reach to state court cases, but only when they pivot on fundamental questions of U.S. constitutional or federal law.

While predominantly an appellate body, the Court also possesses a sliver of original jurisdiction, a rare and peculiar power reserved for a select few scenarios. Specifically, it can directly hear "all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party" [2]. This means disputes involving foreign dignitaries or conflicts between states can bypass the entire lower court system, landing directly on the Supreme Court's doorstep – a dramatic entrance for cases presumably deemed too important for the usual bureaucratic crawl.

Perhaps its most enduring, and certainly its most asserted, power materialized in 1803. In a move that subtly reshaped the very architecture of American governance, the Court claimed for itself the power of judicial review. This wasn't explicitly granted by the founders, who seemed content with a certain ambiguity, but the Court, under Chief Justice John Marshall, saw fit to clarify. Judicial review bestows upon it the ability to invalidate any statute – a law passed by Congress – if it's found to violate a provision of the Constitution. Not content to merely police the legislative branch, the Court later extended this power to strike down presidential directives that overstep either constitutional bounds or existing statutory law [3]. One could say it decided, quite definitively, who gets the final word.

Established by the 1st Congress on March 4, 1789, through the foundational Judiciary Act of 1789, the Court's composition and procedures are rooted in Article Three of the United States Constitution. Today, the Court consists of nine justices—comprising the chief justice of the United States and eight associate justices. These nine individuals convene within the imposing, marble-clad Supreme Court Building in Washington, D.C., a structure built long after the institution itself had found its footing.

A defining, and often debated, characteristic of these justices is their lifetime tenure. They remain on the bench until they choose to die, retire, resign, or, in the rarest of circumstances, are impeached and removed from office [3]. This arrangement, designed for judicial independence, also ensures that their influence can stretch for decades, often outliving the political currents that swept them into power. When a vacancy inevitably arises, the president, after much political maneuvering and with the crucial advice and consent of the Senate, appoints a new justice [4]. This process has become, in recent decades, less a sober deliberation and more a gladiatorial contest.

Each justice, once confirmed and sworn in, casts a single, weighty vote in the cases brought before the Court. When the chief justice finds themselves in the majority, they hold the power to assign who will draft the opinion of the court. Should the chief justice be in the minority, this privilege falls to the most senior justice within the majority bloc [5]. Individual justices are, of course, free to pen their own thoughts: they may write an opinion in concurrence if they agree with the outcome but not necessarily the reasoning, or a dissent if they fundamentally disagree with the majority. These separate opinions, whether concurring or dissenting, can also be joined by other like-minded justices, adding layers to the legal discourse, if not directly altering the outcome. The sheer volume of legal pleas reaching the Court is staggering: on average, approximately 7,000 petitions for writs of certiorari arrive annually, yet the Court, with its characteristic selectivity, grants review to a mere 80 or so [6]. A brutal culling, indeed.

Location: United States Supreme Court Building, 1 First Street, Northeast D.C., U.S. Coordinates: 38°53′26″N 77°00′16″W Established: March 4, 1789; 236 years ago (1789-03-04) [1] Composition method: Presidential nomination with Senate confirmation Authorised by: U.S. Constitution Judge term length: Life tenure Number of positions: 9, by statute Website: supremecourt .gov Chief Justice of the United States: Currently John Roberts Since: September 29, 2005

History

Main article: History of the Supreme Court of the United States

The Royal Exchange in New York City, serving as the first, rather humble, meeting place of the Supreme Court, offered little hint of the grandeur to come. Indeed, for a significant portion of its early existence, the Court lacked a dedicated home, wandering from one temporary lodging to another. It wasn't until 1935 that it finally secured its own imposing United States Supreme Court Building. Before this architectural assertion of its institutional importance, the justices were housed, rather unceremoniously, within the Capitol Building in Washington, D.C.. Even earlier, between 1791 and 1801, the Court conducted its weighty business from City Hall in Philadelphia, a city that, for a time, held the fleeting title of national capital.

In 1787, a mere four years after the dust settled on the American Revolutionary War, delegates converged upon Philadelphia for the 1787 Constitutional Convention. Their task was monumental: to debate the fundamental separation of powers that would define the nascent republic, carving distinct roles for the legislative and executive branches, and, almost as an afterthought, to establish the parameters for a national judiciary [7]. This judiciary was envisioned as a third, albeit initially less glamorous, branch of the federal government.

Breaking from the familiar British tradition, where judicial matters had been firmly under the purview of the royal (executive) authority, the American experiment sought a different path. Yet, even among the delegates, there was no consensus. Those wary of a strong central government argued that state courts could adequately enforce national laws, effectively sidelining a federal judiciary. Figures like James Madison, however, championed the necessity of a national judicial authority, one chosen by the national legislature, and even suggested a role for the judiciary in checking the executive branch's power to veto or revise laws [citation needed]. The irony of some of these early anti-federalist arguments, in light of modern Supreme Court power, is not lost on history.

The framers, ever masters of pragmatic ambiguity, ultimately settled on a rather sparse outline for the judiciary in Article Three of the United States Constitution. It vaguely vested federal judicial power in "one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish" [8]. Crucially, they left the precise delineation of the Supreme Court's powers and prerogatives, and indeed the entire organization of the judicial branch, to future generations [9]. A classic move: establish the framework, then let others fill in the messy details.

It fell to the 1st United States Congress to flesh out this skeletal framework through the Judiciary Act of 1789. They determined that the Supreme Court, destined to be the nation's highest judicial tribunal, would be situated in the nation's capital. Its initial composition was set at a chief justice and five associate justices—a total of six, a number that would fluctuate wildly over the centuries, often in response to political expediency. The Act also meticulously divided the burgeoning country into judicial districts, which were then grouped into circuits. Justices, in a practice that would prove arduous, were mandated to "ride circuit" twice annually within their assigned judicial districts [10]. This meant long, uncomfortable journeys, far from the relative comfort of the capital, a stark contrast to the insulated existence of modern justices.

Immediately upon signing this seminal act into law, President George Washington made his inaugural judicial appointments. John Jay was nominated as the very first chief justice, alongside John Rutledge, William Cushing, Robert H. Harrison, James Wilson, and John Blair Jr. as associate justices. All six swiftly received U.S. Senate confirmation on September 26, 1789. However, Harrison, perhaps sensing the impending inconvenience of circuit riding, declined the appointment, leading Washington to subsequently nominate James Iredell to fill the unexpected vacancy [11].

The Supreme Court, a fledgling institution, held its inaugural session from February 2 to February 10, 1790, at the Royal Exchange in New York City, then the temporary U.S. capital [12]. A second session followed in August of that same year [13]. These earliest gatherings were largely consumed by organizational proceedings; the first substantive cases didn't even trickle in until 1791 [10]. When the nation's capital relocated to Philadelphia in 1790, the Supreme Court, like a dutiful shadow, followed. After a brief stint in what is now Independence Hall, the Court established its chambers at the city hall. This peripatetic existence continued until the capital's final move to Washington, D.C., where the Court was housed within the U.S. Capitol Building (specifically, the Old Supreme Court Chamber) until 1935, when it finally acquired a building befitting its self-proclaimed stature [14].

Early beginnings

Main articles: Jay Court, Rutledge Court, Ellsworth Court, and Marshall Court

John Marshall, chief justice from 1801 to 1835, presided over the Court during its pivotal formative years.

In its nascent phase, under the leadership of Chief Justices Jay, Rutledge, and Ellsworth (spanning 1789–1801), the Supreme Court was a rather quiet affair, hearing a remarkably small number of cases. Its very first decision, West v. Barnes (1791), was, fittingly, a procedural matter [15]. With only six members initially, any majority decision required a four-to-two vote, meaning every ruling also represented a two-thirds consensus [16]. Congress, however, with a foresight that might now be seen as ironic, consistently allowed for less than the full complement of justices to render decisions, setting a quorum of four justices from 1789 onwards [17]. The Court during this period was not only without a permanent home but also suffered from a distinct lack of prestige [18]. This unimpressive status wasn't helped by the era's most high-profile (and quickly reversed) case, Chisholm v. Georgia (1793), a decision that so rankled the states it led directly to the adoption of the Eleventh Amendment within two years [19]. A swift rebuke, indeed.

The Court's power and, more importantly, its perceived prestige, underwent a dramatic transformation during the tenure of the Marshall Court (1801–1835) [20]. Under Marshall's astute, some might say audacious, leadership, the Court firmly established the power of judicial review over acts of Congress [21]. This assertion of supremacy was most famously articulated in Marbury v. Madison, where the Court declared itself the supreme interpreter of the Constitution [22] [23]. Beyond this seminal declaration, the Marshall Court delivered several other crucial constitutional rulings that meticulously defined the balance of power between the burgeoning federal government and the individual states. Notable among these were Martin v. Hunter's Lessee, McCulloch v. Maryland, and Gibbons v. Ogden [24] [25] [26] [27]. These decisions, taken together, laid much of the groundwork for federal authority that continues to shape the nation.

Beyond jurisprudential shifts, the Marshall Court also put an end to the archaic practice of each justice issuing their opinion seriatim [28], a rather inefficient remnant of British tradition [29]. Instead, Marshall skillfully steered the Court towards issuing a single majority opinion, presenting a unified front that undoubtedly bolstered its authority and public perception [28]. Furthermore, during Marshall's lengthy tenure, though largely beyond the Court's direct control, the impeachment and subsequent acquittal of Justice Samuel Chase between 1804 and 1805 served to solidify the crucial principle of judicial independence, ensuring that judges could not be easily removed for unpopular decisions [30] [31]. A rare moment of institutional self-preservation, perhaps.

From Taney to Taft

Main articles: Taney Court, Chase Court, Waite Court, Fuller Court, White Court, and Taft Court

The Taney Court (1836–1864) left an indelible, and largely infamous, mark on American jurisprudence. While it did issue significant rulings, such as Sheldon v. Sill, which clarified that Congress, though unable to limit the Supreme Court's subject matter jurisdiction, could indeed constrain the jurisdiction of lower federal courts to prevent them from hearing certain types of cases [32], its legacy is overwhelmingly defined by one catastrophic decision. The ruling in Dred Scott v. Sandford [33] effectively denied citizenship and fundamental rights to African Americans, both enslaved and free, and is widely regarded as one of the worst decisions in the Court's history, a judicial misstep that tragically helped to precipitate the American Civil War [34]. A stark reminder that even the highest court can be profoundly, and devastatingly, wrong.

In the tumultuous Reconstruction era that followed the Civil War, the Chase, Waite, and Fuller Courts (1864–1910) grappled with the monumental task of interpreting the newly adopted Civil War amendments to the Constitution [27]. During this period, they also significantly developed the controversial doctrine of substantive due process, a legal concept that would be both championed and reviled for decades to come (see Lochner v. New York [35] and Adair v. United States [36]). It was also in 1869 that the size of the Court was last definitively set at nine justices, a number that has, despite numerous political pressures, remained constant ever since.

Moving into the early 20th century, under the stewardship of the White and Taft Courts (1910–1930), the Court continued to shape the legal landscape. It determined that the Fourteenth Amendment had gradually incorporated certain guarantees from the sacred Bill of Rights against state actions, a crucial development in expanding individual liberties (e.g., Gitlow v. New York [37]). The justices also wrestled with the complexities of new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the contentious constitutionality of military conscription during wartime (Selective Draft Law Cases [38]), and brought the aforementioned substantive due process doctrine to its initial peak, often used to strike down economic regulations (Adkins v. Children's Hospital [39]).

New Deal era

Main articles: Hughes Court, Stone Court, Vinson Court, and Warren Court

The imposing U.S. Supreme Court Building in Washington, D.C., a symbol of the Court's perceived permanence and authority, has been its home since 1935. The Hughes Court in 1932, captured by Erich Salomon. This image features Chief Justice Charles Evans Hughes (center), alongside Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the notorious "Four Horsemen": Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who staunchly opposed President Roosevelt's New Deal policies.

The period encompassing the Hughes, Stone, and Vinson courts (1930–1953) witnessed a significant shift in the Court's physical presence and its jurisprudential philosophy. In 1935, the Court finally acquired its own dedicated accommodation [40], a fitting, if belated, recognition of its status. More dramatically, the Court underwent a profound change in its interpretation of the Constitution. Under immense political pressure, particularly from President Franklin D. Roosevelt's administration and his ambitious New Deal agenda, the justices adopted a far broader reading of the federal government's powers. This judicial pivot facilitated the implementation of crucial New Deal policies, as evidenced by landmark decisions such as West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby, and United States v. Butler [41] [42] [43]. The era demonstrated, rather unequivocally, that judicial philosophy is rarely immune to the tides of political necessity.

During the tumultuous years of World War II, the Court's decisions continued to lean heavily in favor of expansive government power. This was starkly illustrated by its upholding of the infamous internment of Japanese Americans in Korematsu v. United States and the mandatory recitation of the Pledge of Allegiance in Minersville School District v. Gobitis. However, the Court, in a rare moment of self-correction, soon repudiated Gobitis in West Virginia State Board of Education v. Barnette, acknowledging the limits of state authority over individual conscience. Furthermore, the Steel Seizure Case later served as a crucial check on the pro-government trend, reinforcing the boundaries of executive power.

The Warren Court (1953–1969), in stark contrast to some of its predecessors, embarked on a period of profound transformation, dramatically expanding the scope and force of Constitutional civil liberties [44]. This era is perhaps best known for its unequivocal declaration that segregation in public schools violated the Equal Protection Clause of the Fourteenth Amendment, a monumental shift articulated in Brown v. Board of Education, Bolling v. Sharpe, and Green v. County School Bd. [45]. The Court further mandated that legislative districts must adhere to the principle of "one person, one vote," ensuring roughly equal population representation (Reynolds v. Sims). It recognized a fundamental, if unenumerated, right to privacy in Griswold v. Connecticut [46], a precedent that would have far-reaching consequences. Moreover, the Warren Court significantly curtailed the role of religion in public schools through decisions like Engel v. Vitale and Abington School District v. Schempp [47] [48]. It systematically incorporated most of the guarantees enshrined in the Bill of Rights against state actions, notably applying the exclusionary rule in Mapp v. Ohio and establishing the right to appointed counsel in Gideon v. Wainwright [49] [50]. Perhaps most famously, it mandated that criminal suspects be informed of all these rights by police upon arrest, giving rise to the now-iconic "Miranda warnings" (Miranda v. Arizona [51]). Simultaneously, the Court restricted defamation suits brought by public figures (New York Times Co. v. Sullivan) and provided the government with a consistent string of antitrust victories [52]. The Warren Court was, in essence, a whirlwind of legal change, a period of unprecedented expansion of individual rights and federal power.

Burger, Rehnquist, and Roberts

Main articles: Burger Court, Rehnquist Court, and Roberts Court

Supreme Court justices with President George W. Bush (center-right) in October 2005. Left to right are: Ruth Bader Ginsburg, David Souter, Antonin Scalia, John Paul Stevens, John Roberts, Sandra Day O'Connor, Anthony Kennedy, Clarence Thomas, and Stephen Breyer. A snapshot of a Court in transition, perhaps, or merely a brief pause between ideological skirmishes.

The Burger Court (1969–1986) marked a discernible, if not entirely abrupt, conservative shift in the Court's trajectory [53]. Despite this general trend, it famously expanded the previously recognized right to privacy from Griswold to famously strike down state abortion laws in Roe v. Wade [54]. However, this period also saw deep divisions among the justices on contentious issues such as affirmative action (Regents of the University of California v. Bakke [55]) and the regulation of campaign finance (Buckley v. Valeo [56]). The Court also displayed a degree of ambivalence regarding the death penalty, initially ruling that most applications were flawed and therefore unconstitutional (Furman v. Georgia [57]), only to later affirm that the death penalty itself was not inherently unconstitutional (Gregg v. Georgia [57] [58] [59]). A Court, it seems, that couldn't quite make up its mind on matters of life and death, or perhaps was merely reflecting the nation's own profound disagreements.

The Rehnquist Court (1986–2005) became particularly known for a vigorous revival of judicial enforcement of federalism [60]. This era saw the Court emphasize strict limits on the Constitution's affirmative grants of power to the federal government (United States v. Lopez) and, conversely, reinforce the strength of its restrictions on those powers (Seminole Tribe v. Florida, City of Boerne v. Flores) [61] [62] [63] [64] [65]. During this time, the Court struck down single-sex state schools as a violation of equal protection (United States v. Virginia), invalidated laws against sodomy as infringements on substantive due process (Lawrence v. Texas [66]), and deemed the line-item veto unconstitutional (Clinton v. New York). Yet, it also upheld the controversial practice of school vouchers ([Zelman v. Simmons-Harris]) and, in a significant move, reaffirmed Roe's core protections while allowing for some state restrictions on abortion laws (Planned Parenthood v. Casey [67]). The Court's decision in Bush v. Gore, which abruptly halted the electoral recount during the contentious 2000 United States presidential election, remains a particularly divisive ruling, with ongoing debate over the rightful winner and whether its narrow, context-specific logic should ever serve as a binding precedent [68] [69] [70] [71]. A decision that, for many, irrevocably stained the Court's reputation for impartiality.

The Roberts Court (2005–present) is widely perceived as even more conservative and, perhaps consequently, more controversial than its Rehnquist predecessor [72] [73] [74] [75]. Its tenure has been marked by a series of high-impact rulings that have reshaped various facets of American law and society. These have included significant decisions on federal preemption (Wyeth v. Levine), fundamental aspects of civil procedure (Twombly–Iqbal), and the scope of voting rights, particularly federal preclearance provisions (Shelby County). The Court has also revisited the contentious issue of abortion, first upholding some restrictions (Gonzales v. Carhart) before, most dramatically, overturning Roe v. Wade in Dobbs v. Jackson Women's Health Organization [76], a decision that sent shockwaves across the nation. Other major rulings have concerned the delicate balance of climate change regulation (Massachusetts v. EPA), the evolving legal status of same-sex marriage (United States v. Windsor and Obergefell v. Hodges), and crucial interpretations of the Bill of Rights. These include highly influential decisions on the First Amendment (Citizens United v. Federal Election Commission [77]), the Second Amendment (Heller–McDonald–Bruen [78]), and the Eighth Amendment (Baze v. Rees [79] [80]). The Roberts Court, it seems, has not shied away from controversy, consistently pushing the boundaries of legal interpretation, often to the delight of some and the despair of others.

Composition

Nomination, confirmation, and appointment

Main article: Nomination and confirmation to the Supreme Court of the United States

John Roberts giving testimony before the Senate Judiciary Committee during the 2005 hearings on his nomination to be chief justice. A ritual of performative deference, often masking deep ideological battles.

The foundational framework for appointing justices to the Supreme Court is laid out in Article II, Section 2, Clause 2 of the United States Constitution, famously known as the Appointments Clause. This clause grants the president the authority to nominate individuals for public officials positions, including the coveted seats on the Supreme Court. However, this power is not absolute; the president's nominations are subject to the crucial confirmation process by the United States Senate. This intricate dance of power is a quintessential example of the system of checks and balances that the Constitution so deliberately enshrines. The president holds the plenary power to select a nominee, a choice that can profoundly shape the Court's trajectory for decades. Conversely, the Senate possesses the equally potent plenary power to either reject or confirm that nominee.

Intriguingly, the Constitution itself imposes no specific qualifications for service as a justice—no age requirement, no citizenship prerequisite, no residency stipulation, and certainly no demand for prior judicial experience. In theory, a president could nominate anyone, and the Senate, in turn, is constitutionally restrained from imposing such qualifications or dictating the president's choice [81] [82]. Yet, in practice, the Senate frequently—and often vehemently—exercises its power to deny confirmation to a candidate it deems unqualified or unsuitable, usually based on ideological alignment rather than a lack of basic legal competence [83].

In contemporary political theater, the confirmation process for Supreme Court nominees has escalated into a high-stakes drama, attracting intense scrutiny from the press and a veritable army of advocacy groups. These groups tirelessly lobby senators, urging them to either confirm or reject a nominee based on whether their past record aligns with the group's particular ideological agenda. The Senate Judiciary Committee serves as the initial battleground, conducting extensive hearings where nominees are grilled on their judicial philosophy and past decisions. Following these hearings, the committee votes on whether to send the nomination to the full Senate with a positive, negative, or neutral recommendation. The practice of personally interviewing nominees is a relatively modern invention; the first nominee to endure this public spectacle was Harlan Fiske Stone in 1925, who appeared before the committee to address concerns about his perceived ties to Wall Street. The modern, more rigorous, questioning process truly began with John Marshall Harlan II in 1955 [84]. Once the committee has rendered its verdict, the nomination proceeds to the full Senate for a final, often bruising, vote. Explicit rejections are, surprisingly, somewhat rare; historically, the Senate has formally rejected only twelve Supreme Court nominees, with Robert Bork, nominated by President Ronald Reagan in 1987, being the most recent high-profile example.

While Senate rules technically allow a nomination to advance even with a negative or tied committee vote, prior to 2017, a nomination could be effectively killed by a filibuster once floor debate had commenced 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 marked the first successful filibuster of a Supreme Court nominee, driven by bipartisan concerns over Fortas's ethics. More recently, President Donald Trump's nomination of Neil Gorsuch to fill the seat left vacant by Antonin Scalia's death faced a similar fate. However, unlike the Fortas filibuster, the opposition to Gorsuch came exclusively from Democratic senators, who cited his perceived conservative judicial philosophy and, notably, the Republican majority's controversial refusal to even consider President Barack Obama's prior nomination of Merrick Garland to the same vacancy [85]. This politically charged standoff led the Republican majority to invoke the "nuclear option," unilaterally changing Senate rules to eliminate the filibuster for Supreme Court nominations, thereby lowering the threshold for confirmation to a simple majority [86]. A clear demonstration of how procedural rules can be bent to achieve political ends.

Ruth Bader Ginsburg giving testimony before the Senate Judiciary Committee during the 1993 hearings on her nomination to be an associate justice. Another chapter in the ongoing saga of public scrutiny and political maneuvering.

Not every Supreme Court nominee makes it to a floor vote in the Senate. A president may, for instance, strategically withdraw a nomination if it becomes glaringly clear that the Senate intends to reject their choice; this occurred with President George W. Bush's nomination of Harriet Miers in 2005, a move that saved both the nominee and the administration further embarrassment. Alternatively, the Senate may simply choose to ignore a nomination, allowing it to expire at the close of the legislative session. President Dwight Eisenhower's initial nomination of John Marshall Harlan II in November 1954, for example, languished without action. Eisenhower was forced to re-nominate Harlan in January 1955, and he was finally confirmed two months later. In a more recent and particularly contentious instance, the Senate infamously failed to act on the March 2016 nomination of Merrick Garland, a nomination that expired in January 2017, leaving the vacancy open for Neil Gorsuch, an appointee of President Trump [11]. A "stolen seat," as some would argue, further highlighting the politicization of the process.

Once the Senate has grudgingly (or enthusiastically) confirmed a nomination, the president's role isn't quite finished. They must then prepare and sign a formal commission, which must then bear the official Seal of the Department of Justice, before the appointee can officially assume office [87]. The seniority of an associate justice, a subtle but significant detail, is determined by this commissioning date, not the date of their confirmation or their ceremonial swearing-in [88]. Only after receiving their commission must the appointee take two prescribed oaths before formally commencing their official duties [89]. The critical importance of these oaths is underscored by the unfortunate case of Edwin M. Stanton. Despite being confirmed by the Senate on December 20, 1869, and duly commissioned as an associate justice by President Ulysses S. Grant, Stanton tragically died on December 24, just days before he could take the prescribed oaths. Consequently, he is not officially recognized as having been a member of the Court [90] [91]. A bureaucratic tragedy, if ever there was one.

The pace of judicial appointments has, like so much else in American politics, slowed considerably. Before 1981, the approval process for justices was typically swift, often concluded within a month during the Truman through Nixon administrations. However, from the Reagan administration onward, this process has become protracted, often taking months. Many observers attribute this drawn-out timeline to a perception that Congress now views justices as playing a far more overtly political role than in previous eras [92]. According to data compiled by the Congressional Research Service, the average time from nomination to a final Senate vote since 1975 is approximately 67 days (about 2.2 months), with a median of 71 days (2.3 months) [93] [94]. A testament, perhaps, to the increasing ideological friction.

Recess appointments

In specific, and generally frowned upon, circumstances, a president possesses the power to make temporary appointments to fill vacancies when the Senate is in recess. These recess appointees hold office only until the conclusion of the very next Senate session, a period typically less than two years. For them to continue serving, the Senate must subsequently confirm the nominee. Historically, of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge failed to be subsequently confirmed, a rare but potent rejection [95].

However, the practice of making recess appointments to the Court has fallen into disuse, and indeed, disrepute. No U.S. president since Dwight D. Eisenhower has resorted to such a maneuver for the Supreme Court, and even in lower federal courts, it has become both rare and highly controversial [96]. In 1960, after Eisenhower had made three such appointments, the Senate, in a rare display of bipartisan annoyance, passed a "sense of the Senate" resolution. This non-binding resolution declared that recess appointments to the Court should only be made in "unusual circumstances," serving as a clear expression of Congress's views and a subtle guide for future executive action [97] [98].

The Supreme Court itself weighed in on the matter in its 2014 decision, National Labor Relations Board v. Noel Canning. This ruling significantly curtailed the president's ability to make recess appointments (including those to the Supreme Court), unequivocally stating that the Senate, and not the president, dictates when it is officially in session or in recess. Justice Breyer, writing for the Court, articulated this with characteristic precision: "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" [99]. This decision effectively granted the Senate a procedural weapon—the use of pro-forma sessions—to prevent presidents from bypassing the confirmation process through recess appointments [100]. A small victory for legislative power, perhaps, in the endless tug-of-war.

Tenure

The peculiar institution of lifetime tenure for federal judges in the U.S., including Supreme Court justices, is a rare beast in the global legal landscape, shared only by the State of Rhode Island's Supreme Court justices. Most other democratic nations, and indeed all other U.S. states, have embraced either set term limits or mandatory retirement ages [101]. This anomaly has not gone without criticism. Larry Sabato, for instance, has observed that "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" [102]. Sanford Levinson has similarly voiced concerns about justices remaining in office despite evident medical deterioration, clinging to power even as their capacities wane [103]. James MacGregor Burns went further, asserting that lifelong tenure "produced a critical time lag, with the Supreme Court institutionally almost always behind the times" [104].

Proposals to address these perceived issues are, of course, plentiful. They include advocating for term limits for justices, as championed by Levinson [105] and Sabato [102] [106], or instituting a mandatory retirement age, a suggestion put forth by Richard Epstein [107], among others [108]. Yet, the counter-argument, articulated by Alexander Hamilton in Federalist 78, remains a powerful one: he argued that a key benefit of lifetime tenure was that "nothing can contribute so much to its firmness and independence as permanency in office" [109]. A timeless debate, it seems, between stability and adaptability.

Article Three, Section 1 of the Constitution, in its elegant brevity, stipulates that justices "shall hold their offices during good behavior," a phrase that has, through long-standing interpretation, come to mean they may serve for the entirety of their lives, until death. This "good behavior" clause is generally understood to imply that the only legitimate mechanism for removing justices from office is through the arduous impeachment process initiated by Congress [110] [111] [112]. The framers, in their wisdom (or perhaps oversight), chose this tenure model to deliberately limit the power to remove justices, thereby safeguarding judicial independence from political whims. This design, while promoting stability, has a significant drawback: there exists no constitutional mechanism for removing a justice who becomes permanently incapacitated by illness or injury, yet is unable (or unwilling) to resign [113].

Historically, the impeachment process has proven to be an exceptionally blunt and rarely used instrument against Supreme Court justices. The only justice ever subjected to impeachment proceedings was Samuel Chase, in 1804. The House of Representatives adopted eight articles of impeachment against him, but he was ultimately acquitted by the Senate, remaining in office until his death in 1811 [114]. More recently, two justices, William O. Douglas and Abe Fortas, faced scrutiny through hearings by the Judiciary Committee, with Douglas being the subject of such inquiries twice, in 1953 and again in 1970. Fortas, facing similar pressure, resigned in 1969 as hearings were being organized. In a contemporary development, on July 10, 2024, Representative Alexandria Ocasio-Cortez filed Articles of Impeachment against Justices Clarence Thomas and Samuel Alito, citing their "widely documented financial and personal entanglements" [115]. The wheels of accountability, it seems, turn slowly, if at all.

Given the indefinite nature of their tenure, the timing of Supreme Court vacancies is, by its very design, unpredictable. Sometimes they cluster in rapid succession, as observed in September 1971, when Hugo Black and John Marshall Harlan II departed the bench within mere days of each other—the shortest interval between vacancies in the Court's history [116]. At other times, a considerable span of years can elapse without a single change, such as the 11-year gap between 1994 and 2005, from the retirement of Harry Blackmun to the death of William Rehnquist, marking the second longest period between vacancies the Court has ever seen [117]. On average, a new justice joins the Court approximately every two years [10], a relatively slow turnover for an institution with such profound impact.

Despite this inherent variability, all but four presidents throughout American history have had the opportunity to appoint at least one justice. William Henry Harrison tragically died just a month into his term, though his successor, John Tyler, did make an appointment during that presidential term. Similarly, Zachary Taylor passed away 16 months into his presidency, but Millard Fillmore, his successor, also made a Supreme Court nomination before that term concluded. President Andrew Johnson, who ascended to the presidency after the assassination of Abraham Lincoln, was notably denied the chance to appoint a justice due to a politically motivated reduction in the size of the Court. Jimmy Carter stands as the singular elected president to complete at least one full term without ever having the opportunity to appoint a justice, a unique historical anomaly. Presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without a vacancy, but later made appointments during their subsequent terms in office. No president who has served more than one full term has ever been deprived of at least one opportunity to shape the Court through an appointment.

Size of the court

The U.S. Supreme Court, with its nine members—one chief justice and eight associate justices—is, rather remarkably, one of the smallest supreme courts globally. The U.S. Constitution, in its characteristic brevity, does not explicitly specify the size of the Supreme Court, nor does it delineate specific positions for its members beyond a passing reference. It merely assumes the existence of the office of the chief justice by stating in Article I, Section 3, Clause 6 that "the Chief Justice" must preside over the impeachment trials of the President of the United States. The authority to define the Court's size and membership has, by long-standing tradition and legislative practice, been assumed to reside with Congress. It was Congress, through the seminal Judiciary Act of 1789, that initially established a six-member Supreme Court, composed of a chief justice and five associate justices.

The size of the Court was not, however, a static number. It was first altered by the Midnight Judges Act of 1801, a politically charged piece of legislation that aimed to reduce the Court's size to five members upon its next vacancy (a slow attrition due to the justices' life tenure). However, this legislative maneuver was swiftly negated by the Judiciary Act of 1802, which restored the Court's size to six members before any such vacancy could occur. As the nation expanded its boundaries across the vast continent, and as Supreme Court justices of that era were still compelled to ride the circuit—an arduous process involving extensive travel by horseback or carriage over often unforgiving terrain, leading to months-long absences from home—Congress periodically added justices. This expansion was ostensibly to match the Court's composition with the nation's growth, leading to the number of seats for associate justices plus the chief justice increasing to seven in 1807, nine in 1837, and eventually ten in 1863 [118] [119]. A clear pattern of political expediency dressed up as administrative necessity.

At the behest of Chief Justice Chase, and in a transparent attempt by the Republican-controlled Congress to curb the power of the Democratic President Andrew Johnson, Congress passed the Judicial Circuits Act of 1866. This act stipulated that the next three justices to retire would not be replaced, a deliberate strategy to thin the bench to seven justices through attrition. Consequently, one seat was eliminated in 1866, and a second in 1867. Soon after Johnson's departure from office, the new president, Ulysses S. Grant [120], a Republican, signed into law the Judiciary Act of 1869. This legislation restored the number of justices to nine [121] (where it has, remarkably, remained ever since), conveniently allowing Grant to immediately appoint two new judges and reshape the Court to his party's liking.

President Franklin D. Roosevelt, facing a Supreme Court that consistently obstructed his New Deal policies, famously attempted to expand the Court in 1937. His audacious proposal envisioned the appointment of one additional justice for every incumbent justice who reached the age of 70 years and 6 months and subsequently refused to retire, with a maximum potential bench of 15 justices. While ostensibly framed as a measure to alleviate the burden of the docket on elderly judges, the true, thinly veiled purpose was widely understood as an effort to "pack" the Court with justices sympathetic to Roosevelt's agenda [122]. This plan, universally known as the "court-packing plan," ultimately failed spectacularly in Congress. Even members of Roosevelt's own Democratic Party believed it to be an unconstitutional overreach. It was defeated by a decisive 70–20 vote in the Senate, and the Senate Judiciary Committee delivered a scathing report, stating 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" [123] [124] [125] [126]. A rare, but powerful, moment of institutional self-defense against executive ambition.

More recently, the expansion of a 5–4 conservative majority to a 6–3 "supermajority" during the first presidency of Donald Trump has led many analysts to characterize the Court as the most conservative since the 1930s [127] [128]. This ideological shift has, predictably, reignited calls for an expansion in the Court's size, with some arguing it's necessary to correct what they perceive as a profound imbalance, particularly given that Republicans had appointed 14 of the 18 justices immediately preceding Amy Coney Barrett's controversial confirmation. In April 2021, during the 117th Congress, some Democrats in the House of Representatives introduced the Judiciary Act of 2021, a bill aimed at expanding the Supreme Court from nine to 13 seats. This proposal, however, met with deeply divided views within the Democratic Party itself, and Speaker of the House Nancy Pelosi ultimately declined to bring it to the floor for a vote [129] [130]. Shortly after assuming office in January 2021, President Joe Biden established a presidential commission to study potential reforms to the Supreme Court. The commission's final report in December 2021 extensively discussed the idea of expanding the Court's size but, in characteristic fashion, ultimately took no definitive position [131].

At a mere nine members, the U.S. Supreme Court truly is one of the smallest supreme courts on the global stage. David Litt argues that this diminutive size renders the Court inadequate to represent the diverse perspectives of a country as vast and varied as the United States [132]. Lawyer and legal scholar Jonathan Turley, for instance, has advocated for a significantly larger bench, proposing 19 justices, with the Court gradually expanding by two new members per presidential term. He contends that a larger Court would diminish the outsized influence of any single "swing justice," ensure a "greater diversity of views" among its members, and, perhaps optimistically, render the confirmation of new justices less politically contentious [133] [134]. A noble goal, perhaps, but one that seems perpetually out of reach in the current political climate.

Membership

See also: List of justices of the Supreme Court of the United States

Sitting justices

Currently, the Supreme Court is composed of nine justices, a number that has been, for better or worse, fixed for over a century and a half. Presiding over this formidable body is Chief Justice John Roberts, flanked by eight associate justices. Of these, Clarence Thomas holds the distinction of being the longest-serving justice, having logged an impressive 12,445 days (that's 34 years and 26 days) on the bench as of November 18, 2025. The most recent addition to this exclusive club is Ketanji Brown Jackson, whose tenure commenced on June 30, 2022, following her confirmation by the Senate on April 7 [135]. Each arrival and departure marks not just a change in personnel, but a potential shift in the very interpretive bedrock of American law.

Current justices of the Supreme Court [136]

Justice / birthdate and place Appointed by (party) U.S. Senate confirmation vote Age at Start Age Present Start date Length of service (as of Nov 18, 2025) Succeeded
(Chief Justice) John Roberts (1955-01-27) January 27, 1955 (age 70) Buffalo, New York G. W. Bush (R) 78–22 50 70 September 29, 2005 20 years, 50 days Rehnquist (Reagan)
Clarence Thomas (1948-06-23) June 23, 1948 (age 77) Pin Point, Georgia G. H. W. Bush (R) 52–48 43 77 October 23, 1991 34 years, 26 days Marshall (Johnson)
Samuel Alito (1950-04-01) April 1, 1950 (age 75) Trenton, New Jersey G. W. Bush (R) 58–42 55 75 January 31, 2006 19 years, 291 days O'Connor (Reagan)
Sonia Sotomayor (1954-06-25) June 25, 1954 (age 71) New York City, New York Obama (D) 68–31 55 71 August 8, 2009 16 years, 102 days Souter (Bush Senior)
Elena Kagan (1960-04-28) April 28, 1960 (age 65) New York City, New York Obama (D) 63–37 50 65 August 7, 2010 15 years, 103 days Stevens (Ford)
Neil Gorsuch (1967-08-29) August 29, 1967 (age 58) Denver, Colorado Trump (R) 54–45 49 58 April 10, 2017 8 years, 222 days Scalia (Reagan)
Brett Kavanaugh (1965-02-12) February 12, 1965 (age 60) Washington, D.C. Trump (R) 50–48 53 60 October 6, 2018 7 years, 43 days Kennedy (Reagan)
Amy Coney Barrett (1972-01-28) January 28, 1972 (age 53) New Orleans, Louisiana Trump (R) 52–48 48 53 October 27, 2020 5 years, 22 days Ginsburg (Clinton)
Ketanji Brown Jackson (1970-09-14) September 14, 1970 (age 55) Washington, D.C. Biden (D) 53–47 51 55 June 30, 2022 3 years, 141 days Breyer (Clinton)

This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority, as the chief justice has seniority over all associate justices regardless of tenure) on the court:

Court demographics

Main article: Demographics of the Supreme Court of the United States

The current Court, a microcosm of American society, or perhaps a carefully curated selection, comprises five male and four female justices. Among these nine individuals, there are two African American justices (Clarence Thomas and Ketanji Brown Jackson) and one Hispanic justice (Sonia Sotomayor). A nod to evolving diversity, albeit one that took centuries to manifest. Furthermore, at least one of the justices, Samuel Alito, was born to at least one immigrant parent, with his father hailing from Italy [137] [138].

In terms of religious affiliation, the Court currently leans heavily towards Roman Catholicism, with at least six justices identifying as such. One justice is Jewish, and another is Protestant. The religious identity of Neil Gorsuch remains somewhat ambiguous, as it's unclear whether he considers himself a Catholic or an Episcopalian [139]. Historically, the Court was overwhelmingly Protestant, a reflection of the nation's dominant religious landscape: 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists [140] [141]. The first Catholic justice, Roger Taney, was appointed in 1836 [142], and it wasn't until 1916 that Louis Brandeis broke the mold as the first Jewish justice [143]. In a striking reversal of historical trends, recent decades have seen a pronounced shift, with most new appointees being either Catholic or Jewish.

Geographically, the current justices hail from a handful of states. Three are from the perennial powerhouse of New York, two from the nation's capital, Washington, D.C., and one each from New Jersey, Georgia, Colorado, and Louisiana [144] [145] [146]. When it comes to education, the Court exhibits a remarkable, and perhaps predictable, uniformity: eight of the nine justices earned their Juris Doctor from an elite Ivy League law school. Neil Gorsuch, Ketanji Brown Jackson, Elena Kagan, and John Roberts are all graduates of Harvard, while Samuel Alito, Brett Kavanaugh, Sonia Sotomayor, and Clarence Thomas are alumni of Yale. Only Amy Coney Barrett deviates from this elite academic pedigree, having received her Juris Doctor from Notre Dame.

Prior to their elevation to the highest court, many justices held significant positions within the judicial or federal government. Their résumés are often a testament to a long and distinguished, if somewhat predictable, path through the corridors of power. These previous roles, listed in order of seniority following the Chief Justice, include:

Justice Position or office
John Roberts Judge of the United States Court of Appeals for the District of Columbia Circuit (2003–2005) Principal Deputy Solicitor General of the United States (1989–1993) Associate Counsel to the President (1982–1986) The Supreme Court has been criticised for being too political. This is a common accusation from those who believe the court should not interpret the law in any way besides through the lens of past precedent or Textualism. However, it's worth noting that those on both sides of the political spectrum often level this accusation at the court, typically accusing the "other side" of activism while vehemently denying their own engagement in it [331] [332]. It's almost as if "judicial activism" is simply a label for rulings one dislikes.

Conservatives frequently cite the decision in Roe v. Wade (1973) as a prime example of liberal judicial activism. In this landmark ruling, the Court legalized abortion nationwide, basing its decision on an implied "right to privacy" that it discerned within the Due Process Clause of the Fourteenth Amendment [333]. Nearly five decades later, Roe v. Wade was controversially overturned by Dobbs v. Jackson (2022), which eliminated the constitutional recognition of abortion access, effectively returning the issue to individual states. David Litt, among others, criticized the Dobbs decision itself as a form of activism on the part of the Court's conservative majority, precisely because it departed so dramatically from nearly 50 years of precedent, eschewing the principle of stare decisis that typically guides the Court's decisions [334]. The irony, it seems, is palpable.

Even earlier decisions, such as Brown v. Board of Education, which famously outlawed racial segregation in public schools, faced accusations of judicial activism from prominent conservatives like Pat Buchanan [335], Robert Bork [336], and Barry Goldwater [337]. More recently, the controversial decision in Citizens United v. Federal Election Commission was criticized for significantly expanding upon the precedent set in First National Bank of Boston v. Bellotti (1978), which held that the First Amendment protections extended to corporations [250]. The line between interpretation and activism, it seems, remains eternally blurred, dependent largely on one's political vantage point.

Outdated and an outlier

Colm Quinn, a writer for Foreign Policy, has articulated a compelling criticism leveled against the Supreme Court, and indeed against other American institutions: that after two centuries of operation, they are beginning to show their age. He highlights four distinctive features of the United States Supreme Court that set it apart from high courts in other developed countries, and which, he argues, contribute significantly to the pervasive polarization within the American judicial system [338]:

  • High-profile power: The U.S. Supreme Court is one of the rare judicial bodies globally that possesses the unilateral power to strike down legislation duly passed by other politically accountable branches of government. This immense power naturally draws intense political scrutiny and makes every appointment a high-stakes battle.
  • Difficulty of constitutional amendment: Unlike many other nations that allow for constitutional changes through referendums or supermajority votes in their legislatures, the United States Constitution is notoriously difficult to amend. This means that Supreme Court interpretations, once established, are exceptionally hard to reverse, further entrenching the Court's authority and making its decisions feel almost immutable.
  • Politicized nominating process: The process of nominating and confirming Supreme Court justices in the U.S. has become deeply and overtly politicized, transforming what should ideally be a sober assessment of legal qualifications into a partisan proxy war.
  • Lack of term limits or mandatory retirements: The system of lifetime tenure, as previously discussed, is an anomaly. The absence of term limits or mandatory retirement ages means justices can serve for decades, often outliving the political consensus that appointed them, and potentially contributing to an institutional lag.

Adam Liptak, writing in 2008, observed that the U.S. Supreme Court had experienced a decline in its intellectual relevance among other constitutional courts worldwide [249]. He attributed this to several factors, including a pervasive sense of American exceptionalism that discourages looking to foreign legal precedents, the relative infrequency of constitutional amendments or updates to the courts themselves, a noticeable rightward shift in the Court's ideological leanings, and, perhaps most broadly, a diminished global stature of the United States itself [249]. It seems even legal institutions are not immune to the ebb and flow of international influence.

Power

Michael Waldman has argued, with considerable weight, that no other country bestows upon its Supreme Court as much power as the United States does [339]. This sentiment is not new; Warren E. Burger, before he even became Chief Justice, ominously warned that a Supreme Court possessing such "unreviewable power" was inherently likely to "self-indulge itself," making it improbable that it would "engage in dispassionate analysis" [340]. Larry Sabato echoes this concern, contending that the federal courts, and particularly the Supreme Court, wield excessive power [102]. Legal scholar Suja A. Thomas further argues that the Supreme Court has, over time, largely usurped the constitutionally defined power of juries in the United States, centralizing it within its own judicial authority [341]. She attributes this shift, in part, to the influence of legal elites and corporations who often prefer the predictability of judges over the unpredictable nature of juries [342], as well as the inherent inability of the jury system to actively defend its own power against encroachment [343].

The 2021–2022 term of the Court was particularly contentious, leading some members of Congress to openly characterize its outcomes as a significant shift of governmental power into the Supreme Court, even labeling it a "judicial coup" [344]. This term marked the first full period following the controversial appointments of three conservative judges by Republican president Donald Trump—Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett—solidifying a robust six-strong conservative majority on the Court. Predictably, at the conclusion of this term, the Court issued a series of decisions that profoundly favored this conservative bloc, dramatically altering the legal landscape, particularly concerning individual rights. These included the landmark ruling in Dobbs v. Jackson Women's Health Organization, which overturned both Roe v. Wade and Planned Parenthood v. Casey, thereby eliminating the constitutional right to abortion. The Court also expanded gun rights significantly in New York State Rifle & Pistol Association, Inc. v. Bruen, recognizing public possession of guns as a protected right under the Second Amendment. Furthermore, decisions in Carson v. Makin and Kennedy v. Bremerton School District both served to weaken the Establishment Clause, blurring the lines between church and state, while West Virginia v. EPA curtailed the power of executive branch agencies to interpret their congressional mandates [345] [346] [347]. For many, these decisions collectively represented a profound reorientation of power, not just within the judiciary, but across the entire federal government.

Federalism debate

The precise boundary between federal and state power has been a perpetual point of contention throughout American history, a debate as old as the republic itself. While esteemed Framers such as James Madison [348] and Alexander Hamilton [349] argued in The Federalist Papers that their then-proposed Constitution would not infringe upon the sovereign authority of state governments [350] [351] [352] [353], others have contended that expansive federal power is not only beneficial but entirely consistent with the original intentions of the Framers [354]. The Tenth Amendment to the United States Constitution explicitly attempts to clarify this by stating that "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." A clear statement, yet one that has been endlessly reinterpreted.

The Court has, at various points, faced criticism for granting the federal government an overly broad license to interfere with state authority. One persistent critique centers on its interpretation, or perceived misuse, of the Commerce Clause. Critics argue that the Court has upheld federal regulations and legislation with tenuous connections to interstate commerce, enacted under the thinly veiled guise of regulating such commerce, while simultaneously striking down state legislation for allegedly impeding interstate commerce. For example, in 2005, the Supreme Court allowed to stand, without comment, a Fifth Circuit Court of Appeals ruling that used the Commerce Clause to uphold the Endangered Species Act, thereby protecting six endemic insect species near Austin, Texas, despite the fact that these insects possessed no commercial value and did not, by any stretch, travel across state lines [355]. Chief Justice John Marshall, in a foundational interpretation, famously asserted that 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" [356]. Justice Samuel Alito has more recently stated that congressional authority under the Commerce Clause is "quite broad" [357], yet commentator Robert B. Reich accurately notes that the debate over the Commerce Clause continues unabated to this day [356].

Advocates of states' rights, such as constitutional scholar Kevin Gutzman, have also leveled criticism at the Court, contending that it has misused the Fourteenth Amendment to systematically erode state authority. Justice Louis Brandeis, a proponent of allowing states to operate largely free from federal interference, famously suggested that states should serve as "laboratories of democracy" [358]. One critic pointed out that "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law" [359]. Conversely, others view the Fourteenth Amendment as a fundamentally positive force, one that extends the "protection of those rights and guarantees to the state level," thereby enhancing individual liberties against potential state overreach [360]. The tension, it seems, is inherent to the system.

More recently, in Gamble v. United States, the Court re-examined the doctrine of "separate sovereigns," a controversial principle that permits a criminal defendant to be prosecuted for the same offense in both state and federal court on separate charges, effectively allowing for double jeopardy under different governmental authorities [361] [362]. A legal nuance that, for those caught in its web, is anything but academic.

Ruling on political questions

Some of the Court's decisions have drawn sharp criticism for what is perceived as an unwarranted intrusion into the political arena, venturing into questions that, by rights, should be the exclusive purview of the elected branches of government. The infamous Bush v. Gore decision, in which the Supreme Court controversially intervened in the 2000 presidential election, effectively handing the presidency to George W. Bush over Al Gore, remains a prime example. This ruling faced intense scrutiny for its overtly political nature, particularly due to the strained and highly contentious justifications employed by the five conservative justices to elevate a fellow conservative to the nation's highest office [363] [324] [364] [365] [366]. Compounding the controversy, the ruling was explicitly framed as applying only to that specific election, rather than drawing upon or establishing consistent legal precedent [367]. A convenient, if transparent, way to avoid future accountability.

Secretive proceedings

Further information: Shadow docket and List of United States Supreme Court leaks

The Supreme Court has, with increasing frequency, been criticized for its persistent penchant for shrouding its internal deliberations in secrecy, largely hidden from public view [368] [369]. This opacity is particularly evident in the growing reliance on what has become known as the "shadow docket." This increasingly utilized mechanism allows the Court to issue significant decisions, often with profound consequences, in secret, without the usual public scrutiny of how each justice arrived at their conclusion [370] [371]. In 2024, Matt Ford, comparing the analysis of shadow-docket decisions to the arcane art of Kremlinology, described this trend of secrecy as "increasingly troubling," arguing that the Court's legitimacy and power derive almost entirely from its ability to persuade and explain its reasoning [372]. When transparency is sacrificed, trust inevitably follows.

A 2007 review of Jeffrey Toobin's book further illuminated this issue, likening the Court to a cartel where its inner workings remain largely unknown. This lack of transparency, the review argued, significantly reduces scrutiny, ultimately harming ordinary Americans who possess little insight into the decisions of these nine immensely powerful justices [363]. Public sentiment seems to concur: a 2010 poll revealed that 61% of American voters believed that televising Court hearings would "be good for democracy," and a full 50% stated they would actually watch Court proceedings if they were televised [373] [374]. A clear demand for more light, met with persistent darkness.

Too few cases

Ian Millhiser of Vox has speculated that the decades-long decline in the number of cases the Supreme Court chooses to hear might be attributable to the increasing political makeup of its judges. He suggests that these judges might be more interested in resolving political disputes than in diligently settling purely legal ones [375]. A cynical, but perhaps accurate, assessment of priorities.

Too slow

British constitutional scholar Adam Tomkins has identified inherent flaws in the American system's reliance on its courts, and specifically the Supreme Court, to act as a primary check on the Executive and Legislative branches. He argues that because these courts must patiently wait, sometimes for years, for cases to painstakingly navigate their way through the intricate legal system, their ability to effectively restrain the other branches of government is severely weakened [376] [377]. This contrasts sharply with other nations that employ dedicated constitutional courts possessing original jurisdiction over constitutional claims brought directly by individuals or political institutions; a prime example being the Federal Constitutional Court of Germany, which can swiftly declare a law unconstitutional when challenged.

More recently, the Court has faced pointed criticism for "slow-walking" important cases related to former president Donald Trump, with accusations that these delays are strategically designed to benefit his election prospects in the context of the 2024 United States presidential election [378]. The Court is currently deliberating a crucial presidential immunity claim as part of the broader Federal prosecution of Donald Trump (election obstruction case). Critics contend that the Court's deliberate pace in this matter aims to push a final decision past the election cycle. They point to historical precedent, noting the Court's capacity for extraordinary speed when politically motivated, as demonstrated in Bush v. Gore: in that instance, the Court granted the petition on a Saturday, received briefs on Sunday, held oral arguments on Monday, and issued its final opinion on Tuesday [378]. Sonja West, writing for Slate, argues that the Federal prosecution of Donald Trump (election obstruction case) holds similar, if not greater, national importance to Bush v. Gore and therefore warrants equally expeditious treatment, yet the Court appears to be taking precisely the opposite approach [378]. A clear case, it seems, of selective urgency.

Leaks and inadvertent publications

On occasion, draft opinions, the raw, unpolished thoughts of the justices, are either deliberately leaked or inadvertently released before they are officially published. Such releases are almost universally condemned, often with the assertion that they irrevocably harm the Court's reputation and legitimacy [379]. Chief Justice Roberts himself, in response to the leaked draft opinion for Dobbs v. Jackson Women's Health Organization, famously described such leaks as an "egregious breach of trust" that "undermine the integrity of our operations" [380]. A fair assessment, perhaps, but also an inevitable consequence of an institution whose power is so immense, and whose deliberations are so zealously guarded.

Beyond deliberate leaks, the Court has, on rare occasions, mistakenly released opinions before they were truly ready for public consumption. On June 26, 2024, the Court inadvertently posted an opinion for Moyle v. United States to its website. This premature release seemed to indicate that the Court would temporarily permit abortions in medical emergencies in Idaho, causing a brief flurry of confusion. The official opinion, posted the following day, clarified that the case was merely returned to the lower courts without a definitive ruling on the merits [381]. A momentary glimpse behind the curtain, quickly retracted.

See also

Selected landmark Supreme Court decisions

See also: List of landmark court decisions in the United States