Exposé de Lola, Alicia et Aurélie.

Evolution of the Supreme Court

1. Origin and powers of the Supreme Court

1. Origin of the Supreme Court:

Created by art III, section 1 of C° in 1789

Importance also comes from the fact that is at the top of the judicial hierarchy

2. Powers granted by the C°:

“The judicial Power of the United States shall be vested in one supreme Court …”

• Substantial power over all other branches of federal government

Originate and appellate jurisdiction:

1. Judicial review: a special ability granted by the Marbury v. Madison’s case:

Marbury V. Madison: decision of the 24/02/1803

Chief Justice John Marshall asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was “a necessary consequence of its sworn duty to uphold the Constitution.”

Authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution ( final word on how the American C° is to be interpreted)

Crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" - broad provisions: continually applied to complicated new situations.

Interpretation: binding precedents for all Americans courts

This function: not explicitly provided in the C°, but had been anticipated before its adoption.

Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions.

Many of the Founding Fathers: expected the Supreme Court to assume this role in regard to the C°: Alexander Hamilton & James Madison, for example, had underlined the importance of judicial review in the Federalist Papers (“through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people.” “Constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process.”)

1. Evolution of the Supreme Court from its creation to the mid-20^th century

1. Beginning of the Court: little respect, confusing series of opinions issued in each case

John Jay, from: New York, appointed by President Washington

October 19, 1789  June 29, 1795

John Rutledge, from: South Carolina, appointed by President Washington

August 12, 1795  December 15, 1795

Oliver Ellsworth, from: Connecticut, appointed by President Washington

March 8, 1796  December 15, 1800

2. Marshall’s court — Affirmation of the judiciary power, federal supremacy

John Marshall, from: Virginia, appointed by President John Adams

February 4, 1801  July 6, 1835

Marbury V. Madison 1803: judiciary review of the constitutionality of laws – cf. above

McCulloch V. Maryland 1821: sovereignty of the Union

Cohens V. Virginia 1821: supremacy of the Supreme Court over States Courts

Barron V. Baltimore 1833: range of Bill of Rights over States

3. Taney’s court — Defense of prerogatives of States & slavery

Roger Brooke Taney, from: Maryland, appointed by President Jackson

March 28, 1836  October 12, 1864

Scott V. Sandford 1857: blacks couldn’t become citizens, & Congress: no authority to stop the spread of slavery

(Salmon Portland Chase, from: Ohio, appointed by President Lincoln

December 15, 1864  May 7, 1873

Against slavery and had a major role in Civil War Treasury

Slaughterhouse Cases, 1873: double citizenship)

4. Broad period of liberalism and racial segregation

Morrison Remick Waite, from: Ohio appointed by President Grant

March 4, 1874  March 23, 1888

“Little sympathy for the rights of the individuals”: right to vote: not a privilege of U.S citizenship, and black & white passengers equal access to trains: interfered with interstate commerce

Civil Rights Cases 1883: range of Bill of Right on private persons - Congress can’t forbid racial discrimination made by private persons

Melville Weston Fuller, from: Illinois, appointed by President Cleveland

October 8, 1888  July 4, 1910

“Conservative leaning”

Plessy V. Ferguson 1896: States can authorize, and even impose measures of racial segregation, if conditions given to both races are equals- “separate but equal”

Lochner V. New York 1905: government of judges

Edward Douglass White, from: Louisiana, appointed by President Taft

December 19, 1910  May 19, 1921

1^st siting Justice to be elevated to Chief Justice

Court became initially more liberal, but back to conservatism with WWI

Brushaber V. Union Pacific Railroad, 1916: upheld the constitutionality of a new incomes’ tax law

Schenck V. United States, 1919: freedom of speech

Missouri V. Holland, 1920: interferences between Constitution & treaty

William Howard Taft, from: Connecticut, appointed by President Harding

July 11, 1921  February 3, 1930

Efforts to modernize the nation’s judicial system

Court became even more conservative: curtailed federal authority & restrained the states from regulating economic matters

But helped to lay the groundwork for the “due process revolution”  extension of the protection of the Bill of Rights against actions by states

Liberal because: agreed to the idea that Court “made law”

1. Evolution of the Supreme Court from the mid-20th century :

1. From 1930 onwards: a new era of protection of liberties

Charles Evans Hughes, from: New York, appointed by President Hoover

February 24, 1930  June 30, 1941

Championed free speech, freedom of assembly, free press

Near V. Minnesota 1931: immunity of the press from previous restraint in dealing with official misconduct

DeJonge V. Oregon 1937: peaceable assembly for lawful discussion cannot be made a crime

Harlan Fiske Stone, from: New York, appointed by President Roosevelt, F.

July 3, 1941  April 22, 1946

Groundwork for the later civil rights revolution

Conflicts between personal liberty & government power because of WWII

West Virginia State Board of Education V. Barnette 1943: freedom of opinion

Frederick Moore Vinson, from: Kentucky, appointed by President Truman

June 24, 1946  September 8, 1953

Peacemaker

Opinions on race relations & civil rights

Shelley V. Kraemer 1948: States couldn’t enforce restrictive covenants in housing

Sweatt V. Painter 1950: a State may not deny a black admission to a law school even if a black school is available

2. Warren’s Court – A real implication about discrimination and civil rights:

Earl Warren, from: California, appointed by President Eisenhower

October 5, 1953  June 23, 1969

Expansion of the force of Constitutional civil liberties

“Liberal, activist approach”

Brown v. Board of Education of Topeka: 1954. Racial Integration of public schools: Segregation deprive black children of equal educational opportunities and thus of the equal protection of the law mandated by the 14^th Amendment  separation: inherently unequal (reversing the separate-but-equal doctrine of Plessy v. Ferguson of 1896)

Yates v. United States: 1957. Freedom of Political Expression: Overturned the conviction of some second-string Communists on the basis of free speech

Trop v. Dulles 1958: notion of cruel and unusual punishment

Engel v. Vitale: 1962. Separation of Church and State

Baker v. Carr: 1962. Equal Voting Rights. Under the equal-protection-of-the-law provisions of the 14^th Amendment, state legislative districts must represent people equally on a one-person, one-vote basis. ( Theoretically, now all members of the House of Representatives represent the same number of constituents, so that each of us is equal to all others in being represented in the House.)

Miranda v. Arizona: 1966 Rights of the Accused. When individuals deprived of their freedom: certain rights consonant with the principle of due process. The arresting and investigative unit (the police) must inform individuals of their rights the moment that they have been detained. (Under the Miranda formula, you would (a) be told that you may remain silent, (b) be told that anything you say can be held against you, (c) have a right to counsel prior to and during questioning, and (d) if indigent, have a right to have counsel appointed for you  Decision clarified the rights of an accused person (not a convicted criminal)

Griswold v. Connecticut: 1965. Right of Privacy. Implied by Amendments 1 (freedom of religion and of speech), 4 (protecting persons from "unreasonable searches and seizures") and 14 (protecting rights of "due process of law")

Loving v. Virginia: 1967. Unconstitutionality of the interdiction of multiracial marriages.

3. Burger’s Progressive Court:

Warren Earl Burger, from: Virginia, appointed by President Nixon

June 23, 1969  September 26, 1986

Conservative viewpoint, narrow reading of the Constitution – but a lot of liberals in the Court

Court upheld use of busing to remedy school segregation, expanded defendants’ right to counsel, prohibited the government from conducting electronic surveillance without obtaining a warrant

Roe v. Wade 1973: created a constitutional right to abortion during most of woman’s pregnancy

Furman v. Georgia 1972: dithered on the death penalty, “cruel and unusual”  moratorium on capital punishment throughout the United States

Gregg v. Georgia 1976: Declared that death penalty itself: not unconstitutional; reaffirmed the United States Supreme Court's acceptance of the use of the death penalty in the United States

4. The current Supreme Court: a more conservative one

William Hubbs Rehnquist, from: Virginia, appointed by President Reagan

September 26, 1986  September 3, 2005

City of Richmond v. Croson 1989: on affirmative action for hiring & public contracts: the city of Richmond's minority set-aside program, which gave preference to minority business enterprises (MBE) in the awarding of municipal contracts, was unconstitutional under the Equal Protection Clause. The Court found that the city failed to identify both the need for remedial action and that other non-discriminatory remedies would be insufficient.

Employment division, department of human resources v. Smith 1990: on religious exemptions: the state could deny unemployment benefits to a person fired for violating a state prohibition on the use of peyote, even though the use of the drug was part of a religious ritual. Although states have the power to accommodate otherwise illegal acts done in pursuit of religious beliefs, they are not required to do so.

Romer v. Evans 1996: homophobic discrimination - an amendment to the Colorado state constitution ("Amendment 2") that would have prevented any city, town or county in the state from taking any legislative, executive, or judicial action to recognize gay and lesbian citizens as a protected class was passed by Colorado voters in a referendum – unconstitutional

United States v. Virginia 1996 sex equality - struck down the Virginia Military Institute's long-standing male-only admission policy in a 7-1 decision.

Boys scouts of America v. Dale 2000 about the right to expressive association - the court ruled that opposition to homosexuality is part of BSA's "expressive message", and allowing homosexuals as adult leaders would interfere with that message

Grutter v. Bollinger 2003 affirmative action in higher Education - the United States Supreme Court upheld the affirmative action admissions policy of the University of Michigan Law School.

John G., Jr. Roberts, from: Maryland, appointed by President Bush, G. W.

September 29, 2005  …

Boumediene v. Bush 2008 Habeas Corpus - by a majority of five votes against four, the Court ruled that the Guantánamo detainees should have access to regular court system

IV) The Supreme Court nowadays

A) The current Court

The Roberts Court (2005–present) is regarded by some as more conservative than the Rehnquist Court. Some of its major rulings have concerned :

• federal preemption (Wyeth v. Levine),
• civil procedure (Bell-Iqbal),
• abortion (Gonzales v. Carhart)
• and the Bill of Rights, prominently Citizens United v. Federal Election Commission (First Amendment), Heller -McDonald (Second Amendment),and Baze v. Rees (Eighth Amendment).

Current composition :

John G. Roberts (Chief Justice) appointed by George W. Bush

Antonin Scalia and Anthony Kennedy appointed appointed by Ronald Reagan

Clarence Thomas appointed by George W. Bush

Ruth Bader Ginsburg and Stephen Breyer appointed by Bill Clinton

Samuel Alito appointed by George W. Bush

Sonia Sotomayor and Elena Kagan appointed by Barack Obama

B) Judicial leanings

While justices do not represent or receive official support from political parties, as it is zn 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, however, refer to legal outlook rather than a political or legislative one, because Supreme Court justices are not members of the executive or legislative branches.

As of the October 2010 term of the Court, the Court consists of five justices appointed by Republican Presidents, and four appointed by Democratic Presidents. It is popularly accepted that :

• Chief Justice Roberts and Justices Scalia, Thomas, and Alito comprise the Court's conservative wing.
• Justices Ginsburg, Sotomayor, Souter and Breyer are generally thought of as the Court's liberal wing.

According to statistics, the Court decided 86 cases in the October 2010 term, including :

• 75 signed opinions,
• 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 those cases due to her prior role as United States Solicitor General.

C) Politicization of the Court

Clerks hired by each of the justices of the Supreme Court are often given considerable freedom in the opinions they draft. Professor Garrow said "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s. As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts". The Court had thus begun to mirror the political branches of government.

This politicized hiring trend reinforces the impression that the Supreme Court is "a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law."

Nomination or Election of Federal Judges

A) Federal Judges

The way of electing of the federal judges is written in the Article 2 of the Constitution. Federal judges are appointed by the President with the “advice and consent” of the Senate. They are appointed for life and only can be removed by congressional impeachment but it doesn't happen very often. Presidents will often choose persons close to their own political leanings. The candidates will be, for the most part, competent jurists. Senate consent is not automatic, and it does refuse candidates, so that the President must find another name to submit to its approval. Candidates for the federal appeals courts and the Supreme Court will be particularly scrutinized.

The choice of a Supreme Court judge is especially delicate. The Constitution provides that a Supreme Court must be established but does not indicate the numbers of judges, called “justices”, that shall sit on the Court. When it was first created there were six justices. Although the number of justices went up and down in the 19^th century, it has not changed since 1869 when Congress decided there would be nine justices on the Court; one chief justice and eight associate justices.

Since these justices are named for life, the choice made by a president must be done with great precaution. Particularly when the Court is rather evenly divided between conservatives and liberals (this is often indicated by the number of decisions taken by a 5 to 4 vote), the retirement of one justice and the appointment of a new one may tilt the scale from one side to another. Considering the important role that the Supreme Court has in interpreting the Constitution, the power to name just one justice can be of great consequence. An example often given to show how thing may go wrong is when President John F. Kennedy, who was himself a liberal, named Byron White, seemingly also liberal, to the Court. After his approval by the Senate, Justice White became conservative in his judgments.

B) U.S. District Courts Judges

The Federal Judiciary Act of 1789 created the U.S. District Courts. These are the trial courts of general jurisdiction. The great majority of federal procedures begin before a district court. Most of it ends here also. They have jurisdiction over most civil and criminal cases involving federal law. They have original jurisdiction, however they may be required to review decisions made by certain agencies.

There is at least one district court in each state, in the District of Columbia and in certain American territories. Generally, only one judge hears the case. It is at this trial level that juries are used when required. About half of the cases before the district courts use juries. In important cases, it is possible to have a panel of three judges (in this case, the court is usually composed of two district judges and one circuit judges).

C) Federal Courts of Appeals Judges

Congress created the federal Circuit Courts of Appeal in 1891. These have become, since 1948, the federal Courts of Appeals although still often referred as the “circuit courts”. The United States is divided into 13 judicial circuits.

These are are the principle appellate courts in the federal level. They may be by-passed in special cases. For example, appeals against the highest court of a state go directly before the Supreme Court.

As in most appeal courts, the case is generally heard by a panel of three judges. In cases concerning issues of great importance, there may be a greater number of judges (the number can vary from circuit to circuit) and this is referred to as the court sitting “en blanc”.

ELECTION AND ROLE OF STATE JUDGES

1. State judges through the ages
2. State judges from the XXth century to nowadays
3. State judges' role

1. State judges through the ages

The election of State judges in the US has been historically a considerable controversy.

During the colonial area, the state judges were selected by the King. This power of the King was one of its intolerable ones and one of the abuses that the colonists attacked in the Declaration of Independence on July 4, 1776.

After the Revolution, the states continued to select judges by appointment but there was a new process, preventing the chief executive from controlling the judiciary.

→ 8 out of the 13 colonies : vested the appointment power in one or both houses of legislature.

→ 2 out of the 13 : appointment by the governor and his council.

→ 3 out of the 13 : appointment by the governor but need tof he consent of the council.

Little by little, the states began to use popular election as a means of choosing judges.

• 1812, Georgia : Amendment of the Constitution → judges of inferior courts will be popularly elected.
• 1816, Indiana : Amendment of the Constitution → election of associate judges of the circuit court.
• 1832, Mississippi : 1^st state in which all judges were popularly elected
• 1836, Michigan : held election for trial judges

During this time, the appointive system was under serious attack. For people, it was a sign that property owners controlled the judiciary. Broadly speaking, people want to end this privilege of the upper class and ensure the popular sovereignty.

1840 → 1850 : little opposition to those who advocated popular election.
Ex : NY Constitutional Convention of 1846 : not really discussion on the subject, NY adopted directly an electoral system.

By the time of the Civil War, 24 of the 34 states established an elected judiciary.

1850 : Seven states adopted the system.

As New States were admitted to the Union, all of them adopted the popular election of some or all judges, until the admission of Alaska (1959).

Then, came a time with a need for reform.

1853 : Delegates to the Massachussets Constitutionnal Convention viewed popular election in NY as a failure and refused to adopt the system. Article in the Washington Post « Judges had become enmeshed in the political mill. »

1867 : The subject was a matter of great debates in NY.

1873 : a proposed amendment to return to the appointive system. The problem is that judges were almost invariably selected by the political machines. Hence, they were incompetent.

The notion of a judiciary not controlled by specific interest was not realised.

Non partisan elections began to emerge. It was the idea of judicial candidates but without a party label. The 1^st non partisan election took place in 1873, in Cook County (Chicago). It was a decision of the judges themselves to run on a non political ballot. The same happened in 1885 and 1893. But still, there was criticism.

1908 : Members of South Dakota Bar Association showed dissatisfaction because it didn't worked, it didn't make the judges autonomous.

By 1927, Iowa, Kansas and Pennsylvania have tried the plan and then abandonned it. There was still no public choice. The candidates were selected by party leader. Most of the electorate was unknowledgeable. Without the guidance of party label, the electorate was not able to make reasonned choices.

1. State judges from the XXth century to nowadays

One of the most outspoken critics : Roscoe Pound, with his book « The causes of the popular dissatisfaction with the administration of Justice ». He explained how he considered the destroyal of the judical branch. There were men compaigning for the State Supreme Court on the ground that their decision would have a particular class flavor.

Reforms

Merit plan : for selecting judges. Expanding the pool of candidates. The origins of the plan can be traced back to Albert M Kales, one of the founders of the American Judicature Society.

1940 : Missouri was the 1^st sate to put a merit plan into effect.

This plan is today known as the Kales plan, the Missouri plan, the merit plan or the commission plan. No plan is identitical but they share common features.

→ A permanent, non partisan commission, composed of lawyer and non lawyers is charged of recruiting and screening candidates. 3 to 5 individuals will be chosen and then sent to the executive, who must make an appointment from the list.

Judicial selection today !

→ Combination of several means used to select judges : almost endless

No 2 states are alike !

The most frequently used classification is the one between states that appoint judges and states that elect their judges. There are 33 states that appoint their judges and 32 that elect them.

The question of the election of judges is subject to many controversies :

AGAINST :

→ Judicial independence ?

→ Lack of citizens' participation

→ judges ought to be above partisan politics

→ Voters don't have enough information to pick up the best judges

→ There is a lot of corruption !

FOR :

→ Elected judges are more in tune with public opinion

→ It elevates debates and awareness of the judiciary.

→ Appointment : more prone to corruption

→ Elections are more competitive, opened and fair

NOTE : Election of judges also in Japan an in Switzerland

2. State judges' rôle

Judges often hold pretrial hearings for cases. They listen to allegations and determine whether the evidence presented merits a trial. In criminal cases, judges may decide that people charged with crimes should be held in jail pending trial, or they may set conditions for their release. In civil cases, judges and magistrates occasionally impose restrictions on the parties until a trial is held.
Judges also work outside the courtroom, in their chambers or private offices. There, judges read documents on pleadings and motions, research legal issues, write opinions, and oversee the court's operations. In some jurisdictions, judges also manage the court’s administrative and clerical staff.
Many State court judges hear only certain types of cases. A variety of titles are assigned to these judges; among the most common are municipal court judge, county court judge, magistrate, and justice of the peace. Traffic violations, misdemeanors, small-claims cases, and pretrial hearings constitute the bulk of the work of these judges, but some States allow them to handle cases involving domestic relations, probate, contracts, and other selected areas of the law.

Type of cases heard :

• Most criminal cases
• Probate (involving wills and estates)
• Most contract cases
• Tort cases (personnal injuries)
• Family law (marriages, divorces, adoptions)
• ect...

State courts are the final deciders of state law and constitutions. Their interpretation of federal law or of the US Constitution may be appealed to the US Supreme Court. As seen, the Supreme Court may choose to hear or not to hear such cases. Judges are important as they ensure good application of the law and because they obey to the power of precedent.

GENERAL CONCLUSION

To conclude, throughout our study in three parts, we have seen different principles of the Supreme Court, from 1789 to nowadays. We also seen the matter of the election of federal and state judges and their rôle.

Fistly, we have learnt that the supreme Court was created in 1789 by the Constitution, which granted it fundamental powers such as being an originate and appelate jurisdiction, being able to operate judicial review. The Court also showed its implication in different causes and thus became an important institution of the United States.

Secondly we have talked about the composition of the Court today, its judicial leaning, the way it tends to politicize and the different criticisms it generates. We also mentionned the way federal judges are selected in the USA.

Finally, we studied the selction of state judges. We have seen how much the subject is and was controversial and how variated are these selections. We have studied the state judges'role and the way they are invested in the law interpretation.