The Supreme Court

The Supreme Court of the United States of America is established in Article III of the Constitution. While the Constitution formally provides for a "Chief Justice" of the Court, it leaves the actual size of the Court up to the Congress. The Congress originally provided for five Associate Justices (for a total of six). The Congress periodically expanded and contracted the size of the Court from seven to nine to ten, back down to six and then back up to its current level of nine. (For practical purposes, the Court tends to function better when there are an odd number of Justices, thereby disallowing the possibility of tie votes.) For a current listing of Supreme Court Justices, see "Quick Facts" about the Federal Judiciary.

U.S. Supremem Court JusticesThe Supreme Court is located just northeast of the United States Capitol. In fact, this building itself is closer to the Capitol than some congressional offices. The impressive building and location of the Court today belie its earlier lack of stature in the American political system. Its evolving role is a significant part of America's history.

The size of the Supreme Court is determined by the Congress. There are currently nine justices on the Court--a Chief Justice and eight Associate Justices. When a vacancy opens on the Court, the President nominates a new Justice who is then confirmed or rejected by the Senate. If confirmed, the nominee becomes a member of the Court and holds that office "during good behavior." In other words, short of committing an impeachable offense, Supreme Court Justices serve for life or until they voluntarily retire. (PHOTO: Standing, left to right: Associate Justices Stephen G. Breyer, Clarence Thomas, Ruth Bader Ginsburg and Samuel Alito. Seated, left to right: Associate Justices , Anthony M. Kennedy, John Paul Stevens, Chief Justice John Roberts, Associate Justices Antonin Scalia and David H. Souter( Souter is retired and was replaced with Sonia Sotomayor)).

The Framers insulated the Courts from the people so that judges could rule impartially on the matters before them. The only direct influence the people have on the Courts is through the votes they cast for the President and, to a lesser degree, their Senators. Once federal judges are appointed, there is little that can be done to influence them other than filing legal briefs supporting one side or another in a case.

The Role of the Supreme Court

The Supreme Court has not always played the significant role in American politics that it does today. In fact, the first year of the Court's existence was almost entirely inconsequential. Its only significant action after convening was to adjourn. The Court did not even have its own home until the late 1800s. Prior to that date, the Supreme Court had met in the basement of the Capitol, a none too subtle indication of the Court's prestige and importance during the early years of the republic. Although it has not always been as significant and powerful as it is today, the Court has always played an indispensable role as the nation's "court of last appeal." With the establishment of the Supreme Court, the Framers provided a means by which legal and constitutional disputes could have an end. When the Supreme Court rules on a dispute or case, its decision is, for all intents and purposes, final. There is no higher court to which a decision can be appealed. 

The cases the Court hears come almost exclusively in the form of appeals to either state supreme court or federal appeals court decisions. (See the diagram on the left.) A tiny fraction of cases arise under the Court's original jurisdiction--it hears only about ten such cases a year. 

As noted, the Court did not play a significant role in interpreting and applying the Constitution in its first several years of existence. In fact, it was not until 1803, in Marbury v. Madison (discussed in "The CONSTITUTION: Implementation & Interpretation"), that the Court declared an act of Congress "unconstitutional."

Pathways to the Supreme Court

The Supreme Court of the United States of America

The State Route
About one-third of the Court's case load comes from state court appeals
The Federal Route
About two-thirds of the Court's case load consists of federal appeals

Cases can be appealed if they raise constitutional questions

Appeals Court rulings can be appealed to the Supreme Court
50 State Supreme Courts Federal Appeals Courts

State Appeals Court rulings can be appealed to State Supreme Courts

Appeals of District Court rulings and decisions of executive branch agencies & commissions
State Appeals Courts 94 Federal District Courts

Rulings in state trial court cases can be appealed 

Cases involving federal law are tried first in federal district court
State Trial Courts  

Cases involving state law are tried first in state trial courts
Adapted from David M. O'Brien. Storm Center: The Supreme Court in American Politics. (New York: W.W. Norton, 1993), 209.


Since that time, the Court has gone through periods were it was very "active," declaring dozens of congressional enactments invalid. During the time that Chief Justices Earl Warren (1953-1969) and Warren Burger (1969-1986) sat on the Court, fifty-nine laws passed by the Congress and signed by the President were declared unconstitutional and, therefore, not laws at all.1 For more on the implications of Supreme Court decisions for the interpretation and definition of the Constitution, and other laws for that matter, see "Supreme Court Decision Making."

Supreme Court Nomination & Confirmation Process

When vacancies occur on the Court, the President is authorized by the Constitution (in Article II, Section 2) to nominate a new Justice. To be confirmed as a Supreme Court Justice, the Senate must approve of the nominee. (The same procedure is followed for filling all federal court vacancies.)

The influence of the Senate is significant in the nomination and confirmation process. Nearly three dozen nominees have been rejected or had their nominations withdrawn or indefinitely postponed because of Senate opposition. Senators see the confirmation process as their opportunity to influence the direction of the Court. Although the President has the authority to make nominations, Presidents are careful to nominate justices who have a reasonable chance of being confirmed.

Even the opposition of a single Senator can seriously jeopardize or even end the confirmation prospects of a nominee. Because of the tradition of "senatorial courtesy," the Senate might reject a nominee who is opposed by a Senator who is a member of the President's party and is from the nominee's home state. Interest groups have also come to play a significant role in the nomination process, with groups lining up on both sides of confirmation battles.

Limits on Supreme Court Authority

While the Supreme Court is largely independent, its power is not absolute. Indeed, while impeachments are rare, the political system in which the Court is situated limits its authority in important ways. First and foremost, Justices are bound by the Constitution. While some Justices have been expansive in their interpretations of the Constitution, they are nonetheless constrained by its precepts. The Court is also institutionally accountable for its actions, especially to the Congress. If its decisions diverge too far from congressional preferences, the Congress can (and has on several occasions) used a variety of tactics to put pressure on the Court, sometimes even proposing constitutional amendments to force the Court to adopt particular legal views. In less extreme circumstances, the Congress has delayed action on cases by changing the starting date of the Court's term or even altering the size of the Court.2

The Court also limits itself by the decisions it makes in cases that come before it. To maintain its legitimacy and to foster consistency in the law, the Court consistently refers and adheres to previous decisions when making judgments in new cases (see "Supreme Court Decision Making"). Although indirectly, public opinion, interest groups, the media, and the opinions of the legal community all influence the decisions made by the Court.

1.  For a brief summary Acts declare invalid by the Supreme Court between 1789 and 1989, see "Acts of Congress Held Unconstitutional in Whole or in Part."
2. David M. O'Brien. Storm Center: The Supreme Court in American Politics. (New York: W.W. Norton, 1993), 139-41; 392-4.