Dynamic body of law that defines and limits the powers of government and sets out its organizational structure.
A resilient document, the U.S. Constitution
E. Robert Seaver, clerk of the Supreme Court in 1970.
The Court is shrouded in secrecy, assuming some of the awe and mystery of the document it interprets. Some have criticized the Court for remaining in an “ivory tower” far removed from “we the people” set out in the preamble to the Constitution. Decisions to grant or deny review are made in secret conferences attended only by the nine justices with no support staff. A traditional unwritten rule specifies that a case is accepted for review if four justices feel that it merits the Court’s attention (rule of four)
When the Court decides to hear a case, the clerk schedules oral argument during which the justices may interrupt and ask questions of the attorneys to clarify, debate, or explain the written briefs. Cases are discussed in secret conferences following oral argument. It takes a majority vote to decide a case.
Following the conference and ensuing discussion, an opinion or reasoned argument explaining the legal issues in the case and the precedents on which the opinion is based must be drafted. The manner in which a majority opinion is written can have a great impact on Americans. That impact depends in part on who writes the opinion and how it is written, and also on the extent of support or dissent by the remaining justices. A 5-4 plurality opinion does not demonstrate the firm conviction of the Court that is present in a unanimous or 8-1 decision.
Any justice can write a separate opinion.
Decision making or opinion writing is a painstaking and laborious process. The time involved varies from one justice to another depending on the complexity of the issues in the case. The actual reporting of decisions has changed from the days in which members of the Court read long opinions aloud, sometimes taking days to do so. When Charles Evans Hughes became chief justice in 1930, he encouraged the delivery of summaries of opinions. That practice has continued, and the justice writing the majority opinion delivers the summary. Dissenting justices deliver their own opinions. Computerization and Lexis and Westlaw legal databases have made newly decided opinions accessible to all within hours of their release.
Decisions of the Court are final
The power to define the Constitution makes the Court unique among government institutions. Through the exercise of its constitutional role together with the rule of law
The justices function as “nine little law firms,” autonomous but working as a collegial body to decide a case. In important cases, the opinions issued by the Court are often negotiated among the members, the result of a cooperative collaboration in which the end product is the joint work of all rather than the product of the named author alone.
The Court imposes certain limitations or barriers before accepting a case for review. It poses certain threshold questions to deal with tactical issues that must be resolved before the Court reaches the substance of the controversy. Referred to as “judicial restraint,” if these elements are not overcome, the Court will not exercise jurisdiction over a case. Article III, section 2, of the Constitution requires that there exist an ongoing “case or controversy”
Precluded are advisory opinions, or giving advice on abstract or hypothetical situations, as the Court ruled in Muskrat v. United States
Courts participate in the development of constitutional law through judicial review
The Framers of the Constitution decentralized control through federalism, considered one of the most important contributions to government. Federalism is a dual system in which powers are divided between national and state authorities.
Protecting the fundamental rights of individuals was considered of the utmost importance. The Framers believed that explicit enumeration of those rights would make the rights more secure. In order to achieve ratification of the main body of the Constitution, therefore, in 1791 the Framers appended to it a Bill of Rights
Basic to American identity is the First Amendment and its central guarantees of freedom of speech, press, religion, assembly, and right to petition for redress of grievances. Despite language to the contrary, the rights contained in the Bill of Rights are not absolute. In the speech area, for example, certain categories of expression can be regulated; others are not protected at all. “Pure” speech that creates no danger to the public is protected. However, if speech advocates an imminent lawless action that presents a “clear and present danger,” the speech loses its protection, as the Court ruled in Schenck v. United States
Some rights that Americans consider basic to their fundamental freedoms are not mentioned specifically in the Constitution. Among these are the right of personal privacy, which protects the individual from state interference. The Court struggled with the constitutional foundation of the right, suggesting various sources: the due process guarantee of the Fourteenth Amendment and the penumbras or emanations from the interests protected by the First, Third, Fourth, Fifth, and Ninth Amendments (Griswold v. Connecticut, 1965).
Maxwell L. Stearns’s Constitutional Process: A Social Choice Analysis of Supreme Court Decision Making (Ann Arbor: University of Michigan Press, 2000) and Timothy Russell Johnson’s Oral Arguments and Decision Making on the United States Supreme Court (Albany: State University of New York Press, 2004) are useful explorations of how the Supreme Court makes its decisions. For a broad overview of how Supreme Court decisions influence constitutional change, see Westel Woodbury Willoughby’s The Supreme Court of the United States: Its History and Influence in Our Constitutional System (Union, N.J.: Lawbook Exchange, 2001). Creating Constitutional Change: Clashes Over Power and Liberty in the Supreme Court, edited by Gregg Ivers and Kevin T. McGuire (Charlottesville: University of Virginia Press, 2004), offers a concise analysis of the process through which the justices go in making decisions that effect changes in the Constitution. Two well-written works containing detailed treatment with case references and quotations are Joan Biskupic and Elder Witt’s The Supreme Court and the Powers of the American Government (Washington, D.C.: Congressional Quarterly, 1997) and The Supreme Court at Work (2d ed., Washington, D.C.: Congressional Quarterly, 1997), with biographical sketches of the justices and illustrations. Lawrence Baum’s The Supreme Court (8th ed., Washington, D.C.: Congressional Quarterly, 2004) examines the role of the Court, the justices, the decision-making process, factors that influence the Court, activism in policy making, and the Court’s significance. Organized by case themes, Decision: How the Supreme Court Decides Cases (New York: Oxford University Press, 1996) by Bernard Schwartz offers a behind-the-scenes look at how the Court decides cases. Archibald Cox’s The Court and the Constitution (Boston: Houghton Mifflin, 1987) is a readable yet scholarly account of how the Court shaped constitutional law. Peter G. Renstrom’s Constitutional Law and Young Adults (Santa Barbara, Calif.: ABC-CLIO, 1992) is a guide to the Constitution, the court system, and key provisions of the Bill of Rights and Fourteenth Amendment with case references. It is comprehensive in scope and comprehensible to the general reader. David P. Currie’s The Constitution of the United States: A Primer for the People (Chicago: University of Chicago Press, 1988) contains an overview of the document and the major concepts contained in it in language intended for the general reader.
Bill of Rights
Marbury v. Madison
Rule of law
Separation of powers