The Supreme Court
The number of Supreme Court justices has remained at nine since 1869, but Congress has the power to change the number and did so several times before that. President Joe Biden announced 09 april 2021 the formation of a bipartisan commission to study potential Supreme Court changes including expansion or imposing term limits on the justices instead of the current lifetime appointments. Senator Ed Markey, and representatives Jerrold Nadler, Hank Johnson and Mondaire Jones presented legislation 15 April 2021 to expand the number of justices from nine to 13.
Progressives had been pushing to expand the supreme court after Donald Trump’s three appointees tilted the judicial body sharply to the right, giving the court a 6-3 conservative majority. One of the positions that Trump filled was a seat that Republicans had blocked his predecessor, Barack Obama, from filling in 2016 – arguing that the winner of that year’s election should choose whom to nominate for the vacant. But in 2021, Republicans reversed course – rushing to approve ultra-conservative justice Amy Coney Barrett just weeks before the 2020 election. Republicans and many moderate Democrats have opposed the idea of expanding the court, or what they sometimes call “court packing”.
The Supreme Court is the highest court of the United States, and the only one specifically created by the Constitution. A decision of the Supreme Court cannot be appealed to any other court. Congress has the power to fix the number of judges sitting on the Court and, within limits, decide what kind of cases it may hear, but it cannot change the powers given to the Supreme Court by the Constitution itself.
The Constitution is silent on the qualifications for judges. There is no requirement that judges be lawyers, although, in fact, all federal judges and Supreme Court justices have been members of the bar. Since the creation of the Supreme Court almost 225 years ago, there have been 112 justices. The original Court consisted of a chief justice and five associate justices. For the next 80 years, the number of justices varied until, in 1869, the complement was fixed at one chief justice and eight associates. The chief justice is the executive officer of the Court but, in deciding cases, has only one vote, as do the associate justices.
The Supreme Court has original jurisdiction in only two kinds of cases: those involving foreign dignitaries and those in which a state is a party. All other cases reach the Court on appeal from lower courts.
A litigant who loses in a federal court of appeals, or in the highest court of a state, may file a petition for a "writ of certiorari," which is a document asking the Supreme Court to review the case. The Supreme Court, however, is not obligated to grant review. The Court typically will agree to hear a case only when it involves a new and important legal principle, or when two or more federal appellate courts have interpreted a law differently. (There are also special circumstances in which the Supreme Court is required by law to hear an appeal.) When the Supreme Court hears a case, the parties are required to file written briefs and the Court may hear oral argument.
Of the several thousand cases filed annually, the Court usually hears only between 150 and 200 cases of the 7,000 requested. Most of the cases involve interpretation of the law or of the intent of Congress in passing a piece of legislation. A significant amount of the work of the Supreme Court, however, consists of determining whether legislation or executive acts conform to the Constitution. This power of judicial review is not specifically provided for by the Constitution.
Rather, it is doctrine inferred by the Court from its reading of the Constitution, and forcefully stated in the landmark Marbury v. Madison case of 1803. In its decision in that case, the Court held that “a legislative act contrary to the Constitution is not law,” and further observed that “it is emphatically the province and duty of the judicial department to say what the law is.” The doctrine has also been extended to cover the activities of state and local governments.
Decisions of the Court need not be unanimous; a simple majority prevails, provided at least six justices—the legal quorum—participate in the decision by writing an opinion or joining with an opinion written by another justice. In split decisions, the Court usually issues a majority and a minority—or dissenting—opinion, both of which may form the basis for future decisions by the Court. Often justices will write separate concurring opinions when they agree with a decision, but for reasons other than those cited by the majority.
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