Scholar Exchange: Article III – The Supreme Court Briefing Document Scholar Exchange: Article III – The Supreme Court Briefing Document INTRODUCTION Big Questions • What is judicial review, and where did it come from? • What is judicial independence, and why do we have it? • What is judicial supremacy, and what have been the arguments for and against it throughout history? Fun Facts • More cases came from the Ninth Circuit than from any other lower court, and the Supreme Court reversed lower court decisions 67% of the time. • Justice Kavanaugh and Chief Justice Roberts agreed on outcomes 93% of the time, as did Justices Breyer and Ginsburg. • Justices Ginsburg and Thomas agreed least often—47% of the time. • Despite the polarized nature of the Court’s opinions in some cases, the chief justice agreed with each of the other justices at least 70% of the time and was in the majority in an astounding 97% of the cases. • The U.S. Supreme Court is an Article III court. Justices are appointed by the president and are subject to confirmation by the Senate. They serve a life term. • There are currently eight associate justices on the Supreme Court and one chief justice of the United States. Let’s begin! At the National Constitution Center, we always start with the text. So, what does the Constitution say about the Supreme Court? Article III of the Constitution established the federal judiciary as one of the three equal branches of the federal government. The first sentence of Article III is as follows: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” Like Article II, the text of Article III is actually very short and does not lay out many details on the Court. But Article III itself can be a bit hard to understand without a bit of background first. The basic ideas are pretty simple, but the language is a bit tougher than the rest of the Constitution. Scholar Exchange: Article III – The Supreme Court Briefing Document Big Idea: The Constitution’s Article III establishes the national government’s judicial branch—the federal judiciary. Within the national government, the judicial branch is responsible for interpreting the laws. Importantly, the Constitution also promotes the principle of judicial independence—granting federal judges life tenure (meaning that they serve until they die, resign, or are impeached and removed from office). Federal courts—including the Supreme Court—exercise the power of judicial review. This power gives courts the authority to rule on the constitutionality of laws passed (and actions taken) by the elected branches. Definitions: • Judicial Review: The Supreme Court has the power to review the constitutionality (meaning, whether the act is proper under the Constitution) of acts of the national and state governments. This is part of the Court’s duty under Article III. • Judicial Independence: The idea that the federal courts—the Supreme Court and lower courts—as part of separation of powers must be independent from the control of the other branches (legislative and executive). This is done by giving judges and justices lifetime tenure and guaranteeing their salaries. • Judicial Supremacy: The idea that the Supreme Court is the final voice on questions of whether actions by the national government (Congress or the executive branch) or state governments are constitutional. HOW DOES THE SUPREME COURT WORK? Let’s start with two basic questions: • How does a case get to the Supreme Court? • And how does a person become a Supreme Court justice? From there, we will return to the Article III’s text itself. So, how does a case get to the Supreme Court? We hear about Supreme Court cases all the time. They cover so many of the constitutional issues that we care most about—from religious liberty to free speech to voting. And these cases can make a lot of news. But where do these cases start? Most constitutional cases start with a simple argument: The government has violated the Constitution. • It may be a law passed by Congress, by a state legislature, or by a town council. • Or it may be an action taken by the president or the governor or some other government official—whether it’s an arrest, a new government regulation, or whatever—you name it. But someone—often a single ordinary American—comes to Court and argues that a law or arrest or regulation violates the Constitution. So, constitutional cases often begin with “We the People.” Or even “Me the individual.” The Supreme Court receives about 10,000 petitions a year. The justices use the “Rule of Four” to decide if they will take the case. If four of the nine justices feel the case has value, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review. When all is said and done the Supreme Court will hear about 75-85 cases a year. This tells us that most petitions are denied. Scholar Exchange: Article III – The Supreme Court Briefing Document Why? • It’s not the Supreme Court’s job to hear every case. • Article III tells us that only certain cases can be heard there. (More on that in a little bit!) • And since 1925, the justices themselves have had almost total control over which cases they decide to hear each year. But how does a case end up before the Supreme Court? We will focus here on the federal court system and on the path that nearly every Supreme Court takes. There are exceptions—including cases starting in state courts. Here’s the process behind how nearly every case works its way up the national court system: • In nearly every case, someone brings a new case in what’s called a district court. This is the lowest level of court in the national courts system. The district courts are where nearly every case starts—and where most of them end! • Justices will also take a case when the lower courts cannot agree on how to interpret the law involved, or in which different lower courts have interpreted the law differently. When the lower courts decide cases differently, it can lead to confusion. By taking a case that involves an issue that has led to differing opinions in the lower courts, the Supreme Court creates a precedent that every court in the country has to follow. This guarantees that the laws are applied equally to all people, no matter where they live. • The Supreme Court only takes cases from state courts when the appeal involves the U.S. Constitution. Thus, the person making the appeal must show that his or her rights, under the Bill of Rights, were denied by the state, or that some error was made in the court that affected their due process rights. Because of these restrictions, most of the Supreme Court’s cases come from the lower federal courts and not from state courts. • A single judge presides over (or manages) the case, and the case is decided by either a judge or a jury. Someone wins, and someone loses. • The loser might decide to appeal—or challenge—the district court’s ruling by having the next level of court (the court of appeals) look at the case. Unlike the Supreme Court, the court of appeals does not control which cases it hears. If someone appeals their case this court, the judges must decide it. • Generally, the court of appeals’ judges have two options: o (1) say that the district court got it right o (2) say that the district court got it wrong—and then explain why and reach a new decision. • Again, someone wins, and someone loses. And it doesn’t have to be the same people as the first time! • Finally, the loser in the court of appeals might try to get the Supreme Court to decide her case. The fancy (lawyerly) words for this is that they can “petition for a writ of certiorari” or even if you want to sound like a real insider: “file for cert.” This simply means that the loser (in the court of appeals) wants the Supreme Court to take their case and decide it. Scholar Exchange: Article III – The Supreme Court Briefing Document • But that isn’t very likely! The Supreme Court has nearly total control over which cases it takes, and it says no to nearly every petition. We’ve discussed the most common way a case ends up before the Supreme Court—working its way up the federal courts system. But what are some other paths? • A party can appeal to the Court once the highest state court (only in federal constitutional questions) has made a decision they want overturned. • The Supreme Court has original jurisdiction, which is limited to cases specifically enumerated in Article III (like suits between states). How many justices does it take to get your case heard? There are nine justices on the Supreme Court. The justices read the challenger’s “cert. petition”—asking the Court to take the case. Four of the justices must vote to take a case before they decide to hear it. This is known by lawyers as “The Rule of Four.” So, that’s four out of nine justices—just short of a majority. Again, if you want to sound like a real insider: When the Court takes a case, we generally call that “granting cert.” But again, the Supreme Court rejects nearly every petition.