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Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate (but largely discretionary) appellate jurisdiction over all federal courts and over state court cases involving issues of federal law, and original jurisdiction over a small range of cases.[1] The Court, which meets in the United States Supreme Court Building in Washington, D.C., consists of a chief justice and eight associate justices who are nominated by the President and confirmed by the Senate. Once appointed, justices have life tenure unless they are removed after impeachment.[2][3]

Contents


History

Earliest beginnings to Marshall

Under Chief Justices Jay, Rutledge, and Ellsworth (1789 1801), the Court heard few cases; its first decision was West v. Barnes (1791), a case involving a procedural issue.[4] The Court lacked a home of its own and had little prestige,[5] a situation not helped by the highest-profile case of the era, Chisholm v. Georgia, which was immediately repudiated by the Eleventh Amendment.

The Court's power and prestige waxed during the Marshall Court (1801 1835).[6] Under Marshall, the Court established the principle of judicial review, including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[7][8] and made several important constitutional rulings giving shape and substance to the balance of power between the federal government and the states (prominently, Martin v. Hunter's Lessee, McCulloch v. Maryland and Gibbons v. Ogden).[9][10][11][12]

The Marshall Court also ended the practice of each justice issuing his opinion seriatim,[13] a remnant of British tradition,[14] and instead issuing a single majority opinion.[13] Also during Marshall's tenure, although beyond the Court's control, the impeachment and acquittal of Justice Samuel Chase in 1804-1805 helped cement the principle of judicial independence.[15][16]

From Taney to Taft

The Taney Court (1836 1864) made several important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects.[17] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,[18] which may have helped precipitate the Civil War.[19] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864 1910) interpreted the new Civil War amendments to the Constitution[12] and developed the doctrine of substantive due process (Lochner v. New York;[20] Adair v. United States).[21]

Under the White and Taft Courts (1910 1930), the Court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states (Gitlow v. New York),[22] grappled with the new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the constitutionality of military conscription (Selective Draft Law Cases)[23] and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).[24]

The New Deal era

During the Hughes, Stone, and Vinson Courts (1930 1953), the Court gained its own accommodation in 1935[25] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby and United States v. Butler).[26] [27][28] During World War II, the Court continued to favor government power, upholding the internment of Japanese citizens (Korematsu v. United States) and the mandatory pledge of allegiance (Minersville School District v. Gobitis). Nevertheless, Gobitis was soon repudiated (West Virginia State Board of Education v. Barnette), and the Steel Seizure Case restricted the pro-government trend.

Warren and Burger

The Warren Court (1953 1969) dramatically expanded the force of Constitutional civil liberties.[29] It held that segregation in public schools violates equal protection (Brown v. Board of Education, Bolling v. Sharpe and Green v. County School Bd.)[30] and that traditional legislative district boundaries violated the right to vote (Reynolds v. Sims). It created a general right to privacy (Griswold v. Connecticut),[31] limited the role of religion in public school (most prominently Engel v. Vitale and Abington School District v. Schempp),[32][33] incorporated most guarantees of the Bill of Rights against the States prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright (right to appointed counsel),[34][35] and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona);[36] At the same time, however, the Court limited defamation suits by public figures (New York Times v. Sullivan) and supplied the government with an unbroken run of antitrust victories.[37]

The Burger Court (1969 1986) expanded Griswolds right to privacy to strike down abortion laws (Roe v. Wade),[38] but divided deeply on affirmative action (Regents of the University of California v. Bakke)[39] and campaign finance regulation (Buckley v. Valeo),[40] and dithered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),[41] then that the death penalty itself was not unconstitutional (Gregg v. Georgia).[41][42][43]

Rehnquist and Roberts

The Rehnquist Court (1986 2005) was noted for its revival of judicial enforcement of federalism,[44] emphasizing the limits of the Constitution's affirmative grants of power (United States v. Lopez) and the force of its restrictions on those powers (Seminole Tribe v. Florida, City of Boerne v. Flores).[45][46][47][48][49] It struck down single-sex state schools as a violation of equal protection (United States v. Virginia), laws against sodomy as violations of substantive due process (Lawrence v. Texas),[50] and the line item veto (Clinton v. New York), but upheld school vouchers (Zelman v. Simmons-Harris) and reaffirmed Roes restrictions on abortion laws (Planned Parenthood v. Casey).[51] The Court's decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000, became controversial.[52] The Roberts Court (2005 present) is regarded by some as more conservative than the Rehnquist Court.[53][54] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Bell-Iqbal), abortion (Gonzales v. Carhart),[55] and the Bill of Rights, prominently Citizens United v. Federal Election Commission (First Amendment),[56] Heller-McDonald (Second Amendment),[57] and Baze v. Rees (Eighth Amendment).[58][59]

Composition

Size of the Court

Article III of the United States Constitution leaves it to Congress to fix the number of justices. The Judiciary Act of 1789 called for the appointment of six justices, and as the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.

In 1866, at the behest of Chief Justice Chase, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine,[60] where it has since remained.

President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to pack the Court with justices who would support Roosevelt's New Deal.[61] The plan, usually called the "Court-packing Plan", failed in Congress and proved a fiasco for Roosevelt.[62] Nevertheless, the Court's balance began to shift within months when Justice van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice.[63]

Appointment and confirmation

The President of the United States appoints justices "by and with the advice and consent of the Senate."[64] Most presidents nominate candidates who broadly share their ideological views, although a justice's decisions may end up being contrary to a president's expectations. Because the Constitution sets no qualifications for service as a justice, a president may nominate anyone to serve, subject to Senate confirmation.

Chief Justice]] John G. Roberts, Anthony Kennedy, and Ruth Bader Ginsburg

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955.[65] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork in 1987.

Nevertheless, not every nominee has received a floor vote in the Senate. Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, a nominee may be filibustered once debate has begun in the full Senate. No nomination for associate justice has ever been filibustered, but President Lyndon Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice was successfully filibustered in 1968. A president may also withdraw a nominee's name before the actual confirmation vote occurs, typically because it is clear that the Senate will reject them, most recently Harriet Miers in 2006.

Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the new justice can take office.[66] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[67]

Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees justices as playing a more political role than in the past.[68]

Recess appointments

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

No president since Dwight Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts.[69] In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the Court should only be made in "unusual circumstances."[70] Such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.[70][71]

Tenure

The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign or retire.[72] Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805).[73] Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, once in 1953 and again in 1970), but they have not reached a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, both unable to resign and unable to resume service.[74]

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

Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Zachary Taylor likewise died early in his term, although his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who succeeded to the presidency after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a contraction in the size of the Court. Jimmy Carter is the only president who completed at least one full term in office without making a nomination to the Court during his presidency.

Three presidents have appointed justices who collectively served more than 100 years: Franklin D. Roosevelt, Andrew Jackson and Abraham Lincoln.[75]

Membership

Current justices

Name Born Appt. by Senate conf. vote Age at appt. First day /
Length of service
Previous positions
Roberts (Chief Justice)
(age )
in Buffalo, New York
78 22 50
Circuit Judge, Court of Appeals for the D.C. Circuit (2003 2005); Private practice (1993 2003); Professor, Georgetown University Law Center (1992 2005); Principal Deputy Solicitor General (1989 1993); Private practice (1986 1989); Associate Counsel to the President (1982 1986); Special Assistant to the Attorney General (1981 1982)
Roberts
(age )
in Trenton, New Jersey
98 0 50
Circuit Judge, Court of Appeals for the D.C. Circuit (1982 1986); Professor, University of Chicago Law School (1977 1982); Assistant Attorney General (1974 1977); Professor, University of Virginia School of Law (1967 1974); Private practice (1961 1967)
Kennedy
(age )
in Sacramento, California
97 0 51
Circuit Judge, Court of Appeals for the Ninth Circuit (1975 1988); Professor, McGeorge School of Law, University of the Pacific (1965 1988); Private practice (1963 1975)
Thomas
(age )
in Pin Point, Georgia
52 48 43
Circuit Judge, Court of Appeals for the D.C. Circuit (1990 1991); Chairman, Equal Employment Opportunity Commission (1982 1990); legislative assistant for Missouri Senator John Danforth (1979 1981); employed by Monsanto Company Inc. (1977 1979); Assistant Attorney General in Missouri under State Attorney General John Danforth (1974 1977)
Ginsburg
(age )
in New York City
96 3 60
Circuit Judge, Court of Appeals for the D.C. Circuit (1980 1993); General Counsel, American Civil Liberties Union (1973 1980); Professor, Columbia Law School (1972 1980); Professor, Rutgers University School of Law (1963 1972)
Breyer
(age )
in San Francisco, California
87 9 56
Chief Judge, Court of Appeals for the First Circuit (1990 1994); Circuit Judge, Court of Appeals for the First Circuit (1980 1990); Professor, Harvard Law School (1967 1980)
Alito
(age )
in Trenton, New Jersey
58 42 55
Circuit Judge, Court of Appeals for the Third Circuit (1990 2006); Professor, Seton Hall University School of Law (1999 2004); U.S. Attorney for the District of New Jersey (1987 1990); Deputy Assistant Attorney General (1985 1987); Assistant to the Solicitor General (1981 1985); Assistant U.S. Attorney for the District of New Jersey (1977 1981)
Sotomayor
(age )
in New York City
68 31 55
Circuit Judge, Court of Appeals for the Second Circuit (1998 2009); District Judge, District Court for the Southern District of New York (1992 1998); Private practice (1984 1991); Assistant District Attorney, New York County, New York (1979 1984)
Kagan
(age )
in New York City
63 37 50
Solicitor General of the United States (2009 2010); Dean of Harvard Law School (2003 2009); Professor, Harvard Law School (2001 2003); Visiting Professor, Harvard Law School (1999 2001); Associate White House Counsel (1995 1999); Deputy Director of the Domestic Policy Council (1995 1999); Professor, University of Chicago Law School (1995); Associate Professor, University of Chicago Law School (1991 1995)

Court demographics

The Court currently has six male and three female justices. One justice is African American, one is Latino, and two are Italian-Americans; six justices are Roman Catholics, and three are Jewish. The average age is , and every current justice has an Ivy League background.[76]

In the 19th century, every justice was a Caucasian male, and concerns about diversity focused on geography, to represent all regions of the country, rather than ethnic, religious, or gender diversity.[77] Thurgood Marshall became the first African American Justice in 1967, and Sandra Day O'Connor became the first female Justice in 1981. O'Connor, whose appointment fulfilled Ronald Reagan's campaign promise to place a woman on the Court, was later joined by Ruth Bader Ginsburg, appointed by Bill Clinton in 1993. Marshall was succeeded by Clarence Thomas, and in 2009, Ginsburg was joined by Sonia Sotomayor, the first Latino justice.

Most justices have been Protestants, including thirty-five Episcopalians, nineteen Presbyterians, ten Unitarians, five Methodists, and three Baptists.[78][79] The first Catholic justice was Roger Taney in 1836, and 1916 saw the appointment of the first Jewish justice, Louis Brandeis. In recent years this situation has reversed: upon the retirement of Justice Stevens, the Court is without a Protestant for the first time in its history.[80]

Retired justices

There are three living retired justices: John Paul Stevens, Sandra Day O'Connor, and David Souter. They may be designated to sit on panels of the United States Courts of Appeals, but never sit as members of the Supreme Court itself.

Seniority and seating

Many of the internal operations of the Court are organized by the seniority of the justices; the Chief Justice is considered the most senior member of the Court, regardless of the length of his or her service. The Associate Justices are then ranked by the length of their service.

During Court sessions, the justices sit according to seniority, with the Chief Justice in the center, and the Associate Justices on alternating sides, with the most senior Associate Justice on the Chief Justice's immediate right, and the most junior Associate Justice seated on the left farthest away from the Chief Justice. Therefore, the current court sits as follows from left to right when looking at the bench from the perspective of a lawyer arguing before the Court: Sotomayor, Breyer, Thomas, Scalia (most senior Associate Justice), Roberts (Chief Justice), Kennedy, Ginsburg, Alito, and Kagan. In the official yearly Court photograph, justices are arranged similarly, with the five most senior members sitting in the front row in the same order as they would sit during Court sessions (Thomas, Scalia, Roberts, Kennedy, Ginsburg), and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions (Sotomayor, Breyer, Alito, Kagan).

In the justices' private conferences, the current practice is for them to speak and vote in order of seniority from the Chief Justice first to the most junior Associate Justice last. The most junior Associate Justice in these conferences is tasked with any menial labor the justices may require as they convene alone, such as answering the door of their conference room, serving coffee, and transmitting the orders of the Court to the court's clerk.[81] Justice Joseph Story served the longest as the junior justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows close behind, with 4,199 days when Samuel Alito joined the court on January 31, 2006.[82]

Salary

For the years 2009 and 2010, associate justices have been paid $213,900 and the chief justice $223,500.[83] Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire and earn his or her final salary for life, plus cost of living increases.

Judicial leanings

While justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches, jurists are informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, 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 and Breyer are generally thought of as the Court's liberal wing; after one term on the Court, Justice Sotomayor is also seen as a member of the liberal wing, voting much as her predecessor, Justice Souter, might have voted.[84][85] John McGinnis, a law professor at Northwestern University School of Law, stated that Sotomayor "appears to be a typical member of the liberal wing", but noted that experts have said justices do not come into their own until they have served five years or so, pointing to Souter's first year as an example;[85] however, McGinnis also noted that Sotomayor has a longer judicial track record than Souter did. According to statistics compiled by SCOTUSblog, during the 2009 term Sotomayor agreed most often with Ginsburg and Breyer (90% of the time in full, in part, or in judgment, second only to the 92% agreement between Scalia and Thomas), and disagreed most often with Scalia and Alito (31% of the time).[86] Justice Anthony Kennedy, generally considered a conservative who "occasionally vote[s] with the liberals",[87] is often the swing vote that determines the outcome of close cases.[88]

In an article in SCOTUSblog,[89] Tom Goldstein argues that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions." He points out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% decided by a 5-to-4 vote; barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also points to several cases that seem to fly against the popular conception of the ideological lines of the Court.[90][91] Goldstein argues that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) are an illustration that the conservative justices have not been aggressively ideological. Likewise, Goldstein states that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacks merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.

According to statistics compiled by SCOTUSblog,[92][93] 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. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9-0 or 8-0), and only 16 decisions were made by a 5-4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term).[94] However, in the 5-4 decisions, the Court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on one side, and Roberts, Scalia, Thomas, and Alito on the other, with Kennedy providing the "swing vote") in 14 of those 16 cases (87% of the time, the highest rate in the past 10 years). The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5-4 decisions, the highest cohesion rate of that bloc in the Roberts court.[92][95][96][97][98]

Politicization of the Court

Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s", according to a study published in 2009 by the law review of Vanderbilt University Law School.[99][100] "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", former federal court of appeals judge J. Michael Luttig said.[99] David J. Garrow, professor of history at the University of Cambridge, stated that the Court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives", Professor Garrow said. "Each side is putting forward only ideological purists."[99]

According to the Vanderbilt Law Review study, 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."[99]

Facilities

The present U.S. Supreme Court building]] seen from across 1st Street SE. From the 1860s until the 1930s, the court sat in the Old Senate Chamber of the U.S. Capitol. The Supreme Court first met on February 1, 1790, at the Merchants' Exchange Building in New York City. When Philadelphia became the capital, the Court met briefly in Independence Hall before settling in Old City Hall from 1791 until 1800. After the government moved to Washington, D.C., the Court occupied various spaces in the United States Capitol building until 1935, when it moved into its own purpose-built home. The four-story building was designed by Cass Gilbert in a classical style sympathetic to the surrounding buildings of the Capitol and Library of Congress, and is clad in marble. The building includes the courtroom, justices' chambers, an extensive law library, various meeting spaces, and auxiliary services including a gymnasium. The Supreme Court building is within the ambit of the Architect of the Capitol, but maintains its own police force separate from the Capitol Police.[101]

Located across the street from the United States Capitol at One First Street NE and Maryland Avenue,[102][103] the building is open to the public from 9 am to 4:30 pm weekdays but closed on weekends and holidays.[102] Visitors may not tour the courtroom itself unaccompanied. There is a cafeteria, a gift shop, exhibits, and a half-hour informational film.[101] When the Court is not in session, lectures about the courtroom are held hourly from 9:30 am to 3:30 pm and reservations are not necessary.[101] When the Court is in session the public may attend oral arguments, which are held twice each morning (and sometimes afternoons) on Mondays, Tuesdays, and Wednesdays in two-week intervals from October through late April, with breaks during December and February. Visitors are seated on a first-come first-served basis. One estimate is there are about 250 seats available.[104] The number of open seats varies from case to case; for important cases, some visitors arrive the day before and wait through the night. From mid-May until the end of June, the court releases orders and opinions beginning at 10 am, and these 15 to 30-minute sessions are open to the public on a similar basis.[101] Supreme Court Police are available to answer questions.[102]

Jurisdiction

Inscription on the wall of the Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review.

Section 2 of Article Three of the United States Constitution outlines the jurisdiction of the federal courts of the United States:

The jurisdiction of the federal courts was further limited by the Eleventh Amendment to the United States Constitution, which forbade federal courts from hearing cases "commenced or prosecuted against [a State] by Citizens of another State, or by Citizens or Subjects of any Foreign State." However, states may waive this immunity, and Congress may abrogate the states' immunity in certain circumstances (see Sovereign immunity). In addition to constitutional constraints, Congress is authorized by Article III to regulate the court's appellate jurisdiction: for example, the federal courts may hear cases only if one or more of the following conditions are met:

  • 1. diversity of citizenship (meaning, the parties are residents of two different states or countries, including foreign states[105]), plus a controversy of at least $75,000.[106]
  • 2. If the case asks a federal question.[107]
  • 3. If the United States federal government (including the Post Office[108]) is a party in the case.[109][110]

Exercise of this power can become controversial (see jurisdiction stripping). For example, , as amended by the Detainee Treatment Act, provides that "No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained by the United States who has been determined by the United States to have been properly detained as an enemy combatant or is awaiting such determination."

The Constitution specifies that the Supreme Court may exercise original jurisdiction in cases affecting ambassadors and other diplomats, and in cases in which a state is a party. In all other cases, however, the Court has only appellate jurisdiction. It considers cases based on its original jurisdiction very rarely; almost all cases are brought to the Supreme Court on appeal. In practice, the only original jurisdiction cases heard by the Court are disputes between two or more states.

The power of the Supreme Court to consider appeals from state courts, rather than just federal courts, was created by the Judiciary Act of 1789 and upheld early in the Court's history, by its rulings in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). The Supreme Court is the only federal court that has jurisdiction over direct appeals from state court decisions, although there are several devices that permit so-called "collateral review" of state cases.

Since Article Three of the United States Constitution stipulates that federal courts may only entertain "cases" or "controversies", the Supreme Court avoids deciding cases that are moot and does not render advisory opinions, as the supreme courts of some states may do. For example, in DeFunis v. Odegaard, , the Court dismissed a lawsuit challenging the constitutionality of a law school affirmative action policy because the plaintiff student had graduated since he began the lawsuit, and a decision from the Court on his claim would not be able to redress any injury he had suffered. The mootness exception is not absolute. If an issue is "capable of repetition yet evading review", the Court will address it even though the party before the Court would not himself be made whole by a favorable result. In Roe v. Wade, , and other abortion cases, the Court addresses the merits of claims pressed by pregnant women seeking abortions even if they are no longer pregnant because it takes longer than the typical human gestation period to appeal a case through the lower courts to the Supreme Court.

Justices as Circuit Justices

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "Circuit Justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time.

Under the Judiciary Act of 1789, each Justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many Justices, who cited the difficulty of travel. Moreover, several individuals opposed it because a Justice could not be expected to be impartial in an appeal if he had previously decided the same case while riding circuit. Circuit riding was abolished in 1891. Today, the duties of a "Circuit Justice" are generally limited to receiving and deciding requests for stays in cases coming from the circuit or circuits to which the Justice is assigned, and other clerical tasks such as addressing certain requests for extensions of time. A Circuit Justice may (but in practice almost never does) sit as a judge of that circuit. When he or she does so, a Circuit Justice has seniority over the Chief Judge of that circuit.

The Chief Justice is traditionally assigned to the District of Columbia Circuit, the Federal Circuit and the Fourth Circuit, which includes Maryland and Virginia, the states surrounding the District of Columbia. Each Associate Justice is assigned to one or two judicial circuits.

As of September 28, 2010, the allotment of the justices among the circuits is:[111]

Circuit Justice
District of Columbia Circuit Chief Justice Roberts
First Circuit Justice Breyer
Second Circuit Justice Ginsburg
Third Circuit Justice Alito
Fourth Circuit Chief Justice Roberts
Fifth Circuit Justice Scalia
Sixth Circuit Justice Kagan
Seventh Circuit Justice Kagan
Eighth Circuit Justice Alito
Ninth Circuit Justice Kennedy
Tenth Circuit Justice Sotomayor
Eleventh Circuit Justice Thomas
Federal Circuit Chief Justice Roberts

Four of the current Justices are assigned to circuits on which they once sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Breyer (First Circuit), Justice Alito (Third Circuit), and Justice Kennedy (Ninth Circuit).

Process

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

Case selection

Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as "cert". The Court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case".[112] The Court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law.[113] The party that lost in the lower court is the petitioner and the party that prevailed is the respondent. All case names before the Court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford, parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact.[114] Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.

The common shorthand name for cases is typically the first party (the petitioner). For example, Brown v. Board of Education is referred to simply as Brown, and Roe v. Wade as Roe. The exception to this rule is when the name of a state, or the United States, or some government entity, is the first listed party. In that instance, the name of the second party is the shorthand name. For example, Iowa v. Tovar is referred to simply as Tovar, and Gonzales v. Raich is referred to simply as Raich, because the first party, Alberto Gonzales, was sued in his official capacity as the United States Attorney General.

A cert petition is voted on at a session of the court called a conference. A conference is a private meeting of the nine Justices by themselves; the public and the Justices' clerks are excluded. If four Justices vote to grant the petition, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.

The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:

  • Resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution
  • Correcting an egregious departure from the accepted and usual course of judicial proceedings
  • Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the Court.

When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split". If the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the final ruling in the case.

To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool." Currently, all justices except for Justice Alito participate in the cert pool.[115][116][117]

Oral argument

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

Decision

At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular Term by the end of that Term. Within that Term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions,[118] circulate among the Justices until the Court is prepared to announce the judgment in a particular case.

It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices.[119] If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought directly to the Supreme Court by direct appeal from a United States District Court, the Chief Justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.[120] This has only occurred once in U.S. history, in the case of United States v. Alcoa.[121]

Published opinions

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

, there are 548 volumes of U.S. Reports. Lawyers use an abbreviated format to cite cases, in the form vvv U.S. ppp (yyyy). The number before the "U.S." refers to the volume number, and the number after the U.S. refers to the page within that volume. The number in parentheses is the year in which the case was decided. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973) and it means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For hot-from-the-press judgments, the volume and page numbers are replaced with "___".

Institutional powers and constraints

The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of this Court to overturn laws and executive actions it deems unlawful or unconstitutional is a well-established precedent. Many of the Founding Fathers accepted the notion of judicial review; in Federalist No. 78, Alexander Hamilton wrote: "A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." The Supreme Court first established its power to declare laws unconstitutional in Marbury v. Madison (1803), consummating the system of checks and balances. This power allows judges to have the last word on allocation of authority among the three branches of the federal government, which grants them the ability to set bounds to their own authority, as well as to their immunity from outside checks and balances.

The Supreme Court cannot directly enforce its rulings; instead, it relies on respect for the Constitution and for the law for adherence to its judgments. One notable instance of nonacquiescence came in 1832, when the state of Georgia ignored the Supreme Court's decision in Worcester v. Georgia. President Andrew Jackson, who sided with the Georgia courts, is supposed to have remarked, "John Marshall has made his decision; now let him enforce it!";[122] however, this alleged quotation has been disputed. Some state governments in the South also resisted the desegregation of public schools after the 1954 judgment Brown v. Board of Education. More recently, many feared that President Nixon would refuse to comply with the Court's order in United States v. Nixon (1974) to surrender the Watergate tapes. Nixon, however, ultimately complied with the Supreme Court's ruling.

Some argue that the Supreme Court is "the most separated and least checked of all branches of government."[123] Justices are not required to stand for election by virtue of their tenure "during good behavior", and their pay may "not be diminished" while they hold their position (Section 1 of Article Three). Though subject to the process of impeachment, only one Justice has ever been impeached and no Supreme Court Justice has been removed from office. Supreme Court decisions have been purposefully overridden by constitutional amendment in only four instances: the Eleventh Amendment overturned Chisholm v. Georgia (1793); the Thirteenth and Fourteenth Amendments in effect overturned Dred Scott v. Sandford (1857); the Sixteenth Amendment reversed Pollock v. Farmers' Loan and Trust Co. (1895); and the Twenty-sixth Amendment overturned some portions of Oregon v. Mitchell (1970). However, when the Court rules on matters involving the interpretation of laws rather than of the Constitution, simple legislative action can reverse the decisions (for example, in 2009 Congress passed the Lilly Ledbetter act, superseding the limitations given in Ledbetter v. Goodyear Tire & Rubber Co. in 2007). Also, the Supreme Court is not immune from political and institutional restraints: lower federal courts and state courts sometimes resist doctrinal innovations, as do law enforcement officials.[124]

In addition, the other two branches can restrain the Court through other mechanisms. Congress can increase the number of justices, giving the President power to influence future decisions by appointments (as in Roosevelt's Court Packing Plan discussed above). Congress can pass legislation that restricts the jurisdiction of the Supreme Court and other federal courts over certain topics and cases: this is suggested by language in Section 2 of Article Three, where the appellate jurisdiction is granted "with such Exceptions, and under such Regulations as the Congress shall make." The Court sanctioned such congressional action in the Reconstruction case ex parte McCardle (1869), though it rejected Congress' power to dictate how particular cases must be decided in United States v. Klein (1871).

On the other hand, through its power of judicial review, the Supreme Court has defined the scope and nature of the powers and separation between the legislative and executive branches of the federal government; for example, in United States v. Curtiss-Wright Export Corp. (1936), Dames & Moore v. Regan (1981), and notably in Goldwater v. Carter (1979), (where it effectively gave the Presidency the power to terminate ratified treaties without the consent of Congress or the Senate). The Court's decisions can also impose limitations on the scope of Executive authority, as in Humphrey's Executor v. United States (1935), the Steel Seizure Case (1952), and United States v. Nixon (1974).

Criticism

Some criticisms leveled at the Supreme Court are:

  • Judicial activism. The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology.[125] An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts.[125][126] An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion in part on the basis of the "right to privacy" expressed in the Fourteenth Amendment, a reasoning that some critics argued was circuitous.[125] Legal scholars,[127][128] justices,[129] and presidential candidates[130] have criticized the Roe decision. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan[131] and former presidential contender Barry Goldwater.[132] Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers."[133] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."[134] During different historical periods, the Court has leaned in different directions.[135][136] Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead.[137][138][139] Critics include writers such as Andrew Napolitano,[140] Phyllis Schlafly,[141] Mark R. Levin,[142] Mark I. Sutherland,[143] and James MacGregor Burns.[144][145] Past presidents from both parties have attacked judicial activism, including Franklin Roosevelt, Richard Nixon, and Ronald Reagan.[146][147] Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d' tat, slow-moving and genteel, but a coup d' tat nonetheless."[148] Senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than [the politician] would like."[149] It has been argued that the Supreme Court is in some respects "certainly a legislative body."[150]
  • Federal versus state power. There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison[151] and Alexander Hamilton[152] argued in the Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments,[153][154][155][156] others argue that expansive federal power is good and consistent with the Framers' wishes.[157] The Supreme Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used to protect non-commercial cave bugs within a state.[158] Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution."[159] Justice Alito said congressional authority under the Commerce Clause is "quite broad."[160] Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.[159] Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the Court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be "laboratories" of democracy.[161] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law."[162] However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level."[163]
  • Judicial interference in political disputes. Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals.[164][165][166][167][168][169] Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called "political questions."[170]
  • Failing to protect individual rights. Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;[171] Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal;[172] Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights.[173][174] A student criticized a 1988 ruling that allowed school officials "to block publication of a student article in the high school newspaper."[175] Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver's licenses, especially poor and minority voters", according to one report.[176] Senator Al Franken criticized the Court for "eroding individual rights."[149] However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.[177]
  • Supreme Court has too much power. This criticism is related to complaints about judicial activism. George Will wrote that the Court has an "increasingly central role in American governance."[178] It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009.[179] A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch.[179] Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis".[180] Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."[181]
  • Courts are poor check on executive power. British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to wend their way through the system, their ability to restrain the other two branches is severely weakened.[182][183]
  • Not choosing enough cases to review. Senator Arlen Specter said the Court should "decide more cases."[149] On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court hears now is smaller today than when he first joined the Supreme Court, he also stated that he has not changed his standards for deciding whether to review a case, nor does he believe his colleagues have changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.[184]
  • Secretive proceedings. The Court has been criticized for keeping its deliberations hidden from public view.[185] Its inner workings are difficult for reporters to cover, like a closed "cartel", only revealing itself through "public events and printed releases, with nothing about its inner workings", according to a review of Jeffrey Toobin's expose The Nine: Inside the Secret World of the Supreme Court.[168] The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives."[168] Larry Sabato complains about the Court's "insularity."[181] A Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised.[186][187] In recent years, many justices have appeared on television, written books, and made public statements to journalists.[184][188] In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Lyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution, with only the justices' private conferences being inaccessible to others.[184] In October 2010, the Court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they take place.
  • Creating a culture of legal intimidation. Critic Philip K. Howard in The Death of Common Sense and Life Without Lawyers criticized the Court for promoting a culture in which "law is wielded as a weapon of intimidation rather than as an instrument of protection."[189] It leads to "a nation paralyzed by fear, unwilling to assume responsibility, both overly reliant on authority and distrustful of it."[189] Howard deplores a legal culture in which the "rights" of "whoever might disagree" have trumped common sense.[190] Specifically, Howard criticized the Earl Warren court for too much "sympathy for the little man."[191] He criticized the Conley v. Gibson decision for opening "the floodgates to abusive litigation."[192]
  • Lifetime tenure. Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day."[181] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.[193] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times."[144] Proposals to solve these problems include term limits for justices, as proposed by Levinson[194] and Sabato[181][195] as well as a mandatory retirement age proposed by Richard Epstein.[196] However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."[197]

See also

Notes

References

Further reading

External links

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