Supreme Court Reform

* 'Offices' as opposed to 'office'. Is the plural application on account of there being several judges or more by each advancing through several offices? Were they to go throughout each to term or one office indefinitely? Is there an inherent open possibility regarding length of terms? Does their compensation mentioned in the same clause change when going from one office to another office? ~ Article III, Section 1 U.S. Constitution

Appointments and Numbers -- SCOTUS

'The Supreme Court is the Nation's highest court. Eight Associate Justices and one Chief Justice comprise the membership of the Court. Like all Federal judges, Supreme Court Justices serve lifetime appointments on the Court, in accordance with Article III of the United States Constitution.'

'When a vacancy occurs on the Supreme Court, the President of the United States is given the authority, under Article II of the United States Constitution, to nominate a person to fill the vacancy. The nomination is referred to the United States Senate, where the Senate Judiciary Committee holds a hearing where the nominee provides testimony and responds to questions from members of the panel. Traditionally, the Committee refers the nomination to the full Senate for consideration.'

'The Judiciary Committee will decide whether to report the nomination favorably to the full Senate, report it unfavorably, or report it without a recommendation. The full Senate will vote on whether to confirm or reject the nominee. (No nominee has been rejected in a Senate vote since 1987, when the Senate rejected Robert Bork after he had been nominated by President Ronald Reagan.) If a nominee is confirmed, they will receive their commission and take two oaths before starting to perform their duties. These are the oath required of federal officials under Article VI of the Constitution, as well as an oath required by the Judiciary Act of 1789.'

'Justices generally may hold tenure for life, as long as they maintain “good behavior.” Their salaries may not be reduced while they are in office. In theory, a Justice may be removed if they are impeached by the House of Representatives and convicted by the Senate. Justice Samuel Chase was impeached by the House in 1804, but he was acquitted by the Senate a year later. Chase is the only Justice to have been impeached, and no Justice has ever been removed.'

'The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices* and 104 Associate Justices, with Justices serving for an average of 16 years. Despite this important institutional continuity, the Court has had periodic infusions of new Justices and new ideas throughout its existence; on average a new Justice joins the Court almost every two years.'

'The Constitution places the power to determine the number of Justices in the hands of Congress. The first Judiciary Act, passed in 1789, set the number of Justices at six, one Chief Justice and five Associates. Over the years Congress has passed various acts to change this number, fluctuating from a low of five to a high of ten. The Judiciary Act of 1869 fixed the number of Justices at nine and no subsequent change to the number of Justices has occurred.'

'There are currently 9 Supreme Court Justices but theoretically a U.S. president could appoint a lot more depending upon a variety of circumstances. First would be how long the president served and second would be how many justices died or retired during a particular president’s time in office. Washington holds the current record as he nominated 14, of which 12 were confirmed; but Washington also started with a clean slate. Four presidents, Jimmy Carter, Andrew Johnson, Zachary Taylor, and William Henry Harrison, didn’t even nominate a single person for the Supreme Court.' ~ Richard Merrill | Nov 8

'The far left and right-hand columns tell an important story. Presidents are making fewer appointments because justices are serving longer. In the first quarter, presidents appointed 21 justices, who served a median of 15 years. In the most recent quarter, presidents appointed only 11 justices, but for justices appointed since 1961, the median years of service is well over 20—almost 30 for Ginsburg and Breyer. Thomas (not shown) has already served over 30 years, and similar ranges can be projected for the other sitting justices, especially because the median age at appointment has dropped from the mid-50s to 51 for the last period shown. Longer tenure, less turnover, fewer appointments. '

'Generally, though, more frequent turnover of justices (appointed by presidents and confirmed by senate majorities both of which represent popular majorities) helps keep the Court from straying too far from the mainstream.' ~ Russell Wheeler | February 17, 2022

'Since the Supreme Court was established in 1789, presidents have submitted 165 nominations for the Court, including those for chief justice. Of this total, 128 were confirmed (7 declined to serve). This chart lists nominations officially submitted to the Senate.'

Table includes justices' years of service on Supreme Court.

'The average number of years that Justices have served is 16.'

Pool of Justices

'Backgrounds of the Justices'

'Just over half of all current and former justices went to an Ivy League institution. In fact, each of the current justices attended one of two particular Ivy League schools: Harvard or Yale.'

'Among all former justices, new members were an average of 53 years old when sworn in, served for an average 16.9 years and ended their tenure at an average age of 69.' ~ KRISTEN BIALIK | MARCH 20, 2017

'Although the rules for appointing and confirming a U.S. Supreme Court justice are set out in the U.S. Constitution, the process for choosing nominees is not codified in law. Past presidents have received lists of recommendations from the White House counsel, the attorney general and lawyers in the Justice Department's Office of Legal Counsel. Justices have often been friends or acquaintances who shared ideological views with the president.'

'The nominating process is also influenced by individuals and organizations outside of the administration. The American Bar Association (ABA), through its 15-member Committee on Federal Judiciary, rates nominees as "well qualified," "qualified" or "not qualified." Others also lobby the president to choose nominees sympathetic to their views or to oppose those with whom they differ.'

'But a nominee's views do not always conform to their future opinions. Some justices have ruled in ways that surprised the presidents who nominated them. Notable examples are Justice Tom C. Clark (nominated by President Harry S. Truman), Chief Justice Earl Warren (nominated by President Dwight D. Eisenhower) and Justice David Souter (nominated by President George H. W. Bush).'

'After the president nominates an individual, the Senate Judiciary Committee conducts a rigorous investigation into the nominee’s background, gleaning a sense of his or her judicial philosophy and temperament, which helps inform whether the senator will support the nominee. During this part of the process, the American Bar Association's Standing Committee on Federal Judiciary reviews the nominee. The nominee also visits with senators in their offices in order to help win support for nomination. The most public aspect of the process is when the nominee testifies before the Judiciary Committee and takes questions.'

Federal Judiciary: Form and Function

'The federal court system has three main levels: district courts (the trial court), circuit courts which are the first level of appeal, and the Supreme Court of the United States, the final level of appeal in the federal system. There are 94 district courts, 13 circuit courts, and one Supreme Court throughout the country.'

'Judges may hold their position for the rest of their lives, but many resign or retire earlier.'

'One exception to the lifetime appointment is for magistrate judges, which are selected by district judges and serve a specified term.'

'The Supreme Court of the United States is the highest court in the American judicial system, and has the power to decide appeals on all cases brought in federal court or those brought in state court but dealing with federal law.'

'The Court typically hears cases when there are conflicting decisions across the country on a particular issue or when there is an egregious error in a case.'

'The Constitution sets no requirements for Supreme Court justices, though all current members of the court are lawyers and most have served as circuit court judges. Justices are also often former law professors.'

'The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. In 1835, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans. . . . A more imposing judicial power was never constituted by any people."

'The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court’s considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.'

'While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.'

'When the Supreme Court rules on a constitutional issue, that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.'

'Constitution tells us little about the make-up or organization of the court; it gives no qualifications for holding seats on the court, and doesn’t establish how many justices will be on the court.'

'If four of the nine Justices feel the case has value, they will issue a writ of certiorari. This is a legal order from the high court for the lower court to send the records of the case to them for review.'

'The Justices of the Supreme Court are most likely to take cases that will affect the entire country, not just the individuals involved. They want to clarify legal issues that are important to as many people as possible, so they take cases that will have a large constitutional impact, or that answer important legal questions that affect the whole nation.'

'By taking a case that involves an issue that has led to differing opinions in the lower courts, the Supreme Court creates a precedent that every court in the country has to follow. This guarantees that the laws are applied equally to all people, no matter where they live.'

'The federal judiciary operates separately from the executive and legislative branches, but often works with them as the Constitution requires. Federal laws are passed by Congress and signed by the President. The judicial branch decides the constitutionality of federal laws and resolves other disputes about federal laws. However, judges depend on our government’s executive branch to enforce court decisions.'

'Courts decide what really happened and what should be done about it. They decide whether a person committed a crime and what the punishment should be. They also provide a peaceful way to decide private disputes that people can’t resolve themselves. Depending on the dispute or crime, some cases end up in the federal courts and some end up in state courts.'

'Congress created several Article I, or legislative courts, that do not have full judicial power. Judicial power is the authority to be the final decider in all questions of Constitutional law, all questions of federal law and to hear claims at the core of habeas corpus issues.'

'Thomas Jefferson defeated John Adams in the 1800 presidential election. Before Jefferson took office on March 4, 1801, Adams and Congress passed the Judiciary Act of 1801, which created new courts, added judges, and gave the president more control over appointment of judges. The Act was essentially an attempt by Adams and his party to frustrate his successor, as he used the act to appoint 16 new circuit judges and 42 new justices of the peace. The appointees were approved by the Senate, but they would not be valid until their commissions were delivered by the Secretary of State.'

'William Marbury had been appointed Justice of the Peace in the District of Columbia, but his commission was not delivered. Marbury petitioned the Supreme Court to compel the new Secretary of State, James Madison, to deliver the documents. Marbury, joined by three other similarly situated appointees, petitioned for a writ of mandamus compelling the delivery of the commissions.'

'Marshall expanded that a writ of mandamus was the proper way to seek a remedy, but concluded the Court could not issue it. Marshall reasoned that the Judiciary Act of 1789 conflicted with the Constitution. Congress did not have power to modify the Constitution through regular legislation because Supremacy Clause places the Constitution before the laws.'

'In so holding, Marshall established the principle of judicial review, i.e., the power to declare a law unconstitutional.'

'Judicial review, power of the courts of a country to examine the actions of the legislative, executive, and administrative arms of the government and to determine whether such actions are consistent with the constitution. Actions judged inconsistent are declared unconstitutional and, therefore, null and void. The institution of judicial review in this sense depends upon the existence of a written constitution.' ~ C. Neal Tate | 19 Dec. 2023

'In political rhetoric activism is used as a pejorative. To describe judges as activist in this sense is to argue that they decide cases on the basis of their own policy preferences rather than a faithful interpretation of the law, thus abandoning the impartial judicial role and “legislating from the bench.”

'Since neither conservatives nor liberals claim that judicial decisions should be based on politics rather than law, the debate over judicial activism does not take the form of arguments for and against.' ~ Kermit Roosevelt | Last Updated: Dec 29, 2023

Reasons for Reforming Supreme Court

'But this connection between the Court and the public has grown tenuous, undercutting the Court’s democratic legitimacy. For instance, it is increasingly common for presidents to have no opportunity to fill a single Supreme Court seat during a four-year term. Up until President Jimmy Carter, this was a rare occurrence: from President George Washington through President Gerald Ford, only 5 out of 47 presidential terms were without any Supreme Court appointments. But in the 12 presidential terms since then, there have already been 4 with no appointments.'

'There are also wide disparities in the number of seats individual presidents have had the opportunity to fill, contributing to stark imbalances on the Court. Beginning with President George H. W. Bush, who appointed the longest-serving justice currently on the bench (Justice Thomas), Republicans have won four out of nine presidential terms and won the popular vote only twice. But Republicans have appointed six of the current nine justices. This supermajority has already had a transformative effect, handing down rulings on issues including civil rights, gun rights, and abortion that disproportionately harm vulnerable communities and are unmoored from the values of the American public. Not surprisingly, public confidence in the Court has plummeted.'

'Under the active/senior justice model, Supreme Court justices retain life tenure, but their tenure is divided into two distinct periods: a phase of active service lasting 18 years and a senior phase lasting for the remainder of a justice’s life This framework would apply to both associate justices and the chief justice. After 18 years, a new chief justice would be appointed and the prior chief would assume senior status.'

'With respect to the Supreme Court, federal law authorizes the chief justice to designate justices who have retired from active service to sit on lower federal courts. Justices regularly do so. For example, since retiring from active service in 2009, Justice David Souter has sat by designation in the First Circuit and heard more than 500 cases, and Justice Sandra Day O’Connor regularly heard cases on federal appeals courts for more than a decade after her retirement in 2006. Justices who have retired from active service also regularly maintain chambers and employ law clerks'

'it has been more than half a century since a justice served for less than 18 years.'

'Term limits combined with regularized appointments would enhance the democratic link between the Court and the public. Under this system, every presidential term would carry equal opportunity to shape the Court’s direction. No individual president would have the chance to install a majority on the Court, nor would a political party be able to lock in a particular ideology for generations over a short period. In addition, adopting these reforms would remove current incentives to appoint increasingly younger justices so as to secure power for a longer period. It would also eliminate opportunities for justices to strategically retire, returning power over the trajectory of the Court to the public via their representatives, as the Constitution envisions.'

'The value of judicial independence is embedded in this constitutional design. By providing that judges hold their offices during good behavior, the Constitution prevents Congress from ousting judges from office other than through the high bar of impeachment and removal. And by prohibiting the diminution of judicial salaries, the Constitution guards against retaliation by the political branches for unpopular decisions.'

'Likewise, Congress has the power to establish 18-year terms for justices so long as the justices continue to “hold their Offices during good Behaviour” after leaving active service, as required by Article III. The active/senior justice model comports with the Good Behavior Clause by providing that after 18 years, justices retain their judicial offices as senior justices with modified responsibilities.' ~ Alicia Bannon, Michael Milov-Cordoba | June 20, 2023

'Drawing on both originalism and formalism, Dow and Mehta begin by observing that the constitutional text does not expressly provide for lifetime tenure; rather, it states that judges shall hold their office during good behavior. The good behavior criterion, however, was not intended to create judicial sinecures for 20 or 30 years, but instead aimed at safeguarding judicial independence from the political branches. By measuring both the length of judicial tenure among Supreme Court justices, as well as voting behavior on the Supreme Court, Dow and Mehta conclude that, in fact, life tenure has proven inconsistent with judicial independence. They maintain that the Framers’ objective of insuring judicial independence is best achieved by term limits for Supreme Court justices.'

'Similarly, if the Framers believed that turnover among justices would be sufficiently regular as to neutralize ideological polarization, but turnover no longer happens at a rate adequate to accomplish that goal, then there is another originalist argument for decoupling the good behavior clause from the life tenure guarantee. Likewise, if the purpose of the good behavior clause was to ensure judicial independence, and if in fact life tenure undermines such independence, the conventional assumption that good behavior grants life tenure may be unsound.'

'Even more striking is the second chart, which demonstrates the sharp rise in cases decided by a one-vote margin (or in which the lower court judgment is affirmed by an equally divided court). Because the number of justices has been fixed at nine since 1869, most cases in this category are 5-4 decisions. Until 1930, fewer than 2 percent of cases were so closely divided. But this phenomenon has become much more common in the last 90 years, and since 1990, it has occurred in nearly one-fifth (18.7 percent) of cases.'

'Good behavior might not exist when justices vote largely along ideological lines, especially when those ideological lines betray a lack of independence from the political branches. Alternatively, the good behavior standard might have been embraced by the Framers on the premise Supreme Court justices would serve substantially shorter terms than they presently do.'

'Framers might have written that judges would hold their office during good behavior, until death. That formulation would have been redundant, and therefore excluded by ordinary canons of interpretation, if life tenure is inherent in the good behavior clause. But it is also possible the Framers intended to limit judicial terms to good behavior, while also anticipating that judges would not serve for the duration of their natural lives.'

'Even Hamilton’s well-known The Federalist No. 78 is less a fullthroated endorsement of life tenure than an embrace of judicial independence, and furthermore, the importance of a judicial check on the political branches. As he said concerning the good behavior standard'

'In terms of insulating the judicial branch from ordinary politics, term limits could not fare any worse than life tenure, and there are therefore compelling policy reasons, grounded in originalism, for Congress to enact such limits.' ~ DAVID R. DOW & SANAT MEHTA | 2021

'Fix the Court has said that unaccountable officials serving for decades on end and ruling on our country’s most important issues is not what our Founders intended when copying and pasting a section of a 1701 English judicial tenure law into Article III of the Constitution.'

'The vast majority of the country (77% according one FTC poll) agrees that life tenure is problematic.'

'So how can we hold the justices accountable to the Constitution and to their ethical obligations while ensuring that they remain independent from politics? Our answer is this: a single, standard 18-year term.'

'Here’s how it’d work: a new justice would be added every other year and after 18 years rotate to a lower court. In other words, future justices would keep Article III life tenure, but they wouldn’t serve on SCOTUS for more than 18 years.'

'Life tenure has turned Supreme Court nominations into a political circus. It’s no longer a priority to find the best candidate for the job – a candidate who will serve with integrity and who has experience outside of an appellate courtroom. Instead, the party in charge scrambles to find the youngest, often most ideological nominee (who, at the same time, knows to say the right things at a confirmation hearing) in order to control the seat for decades to come.'

Court-Packing

: the act or practice of packing (see PACK entry 3 sense 1) a court and especially the United States Supreme Court by increasing the number of judges or justices in an attempt to change the ideological makeup of the court'

'Unlike Congress or the presidency, the Supreme Court is not supposed to be a "political" institution. It must remain neutral in order to settle legal issues, interpret laws, and decide the meaning of the Constitution. Supreme Court justices should not allow their personal or political views to color their decisions. Neither should they permit themselves to be influenced by presidents, other politicians, or popular public opinion. To help assure the justices' independence, the Constitution provides that they serve life terms unless they resign, retire, or are removed for misbehavior.'

'Although appointed by a Republican (Hoover), Chief Justice Hughes tended to vote with the liberals in cases concerning New Deal legislation.'

'Much to the surprise of President Roosevelt, his court-reform plan came under serious attack. The press soon began to refer to it as FDR's "court-packing" scheme. The president was compared with Hitler in seeking dictatorial powers. Even some liberal New Deal Democrats in Congress voiced their reservations.'

'As it turned out in the years that followed, the Supreme Court upheld virtually all of FDR's New Deal reforms. Over the span of his remaining three terms in office, Roosevelt got to name a total of eight new justices to the Supreme Court. In the end, he did get to "pack" the court with men of his choosing.' | Fall 1994 (10:4) :: Updated July 2000

'On February 5, 1937, President Franklin Roosevelt announces a plan to expand the Supreme Court to as many as 15 judges, allegedly to make it more efficient. Critics immediately charged that Roosevelt was trying to “pack” the court and thus neutralize Supreme Court justices hostile to his New Deal.'

'During the previous two years, the high court had struck down several key pieces of New Deal legislation on the grounds that the laws delegated an unconstitutional amount of authority to the executive branch and the federal government.' | Original Published Date February 9, 2010 :: Last Updated February 2, 2024

'Progressives amplified their calls to expand the Supreme Court in hopes of appointing more liberal justices to balance the scales of power after the conservative-majority court delivered several victories to Republicans last week, prompting outrage among Democrats.'

'Reps. Don Beyer (D-Va.) and Ro Khanna (D-Calif.) also reintroduced legislation last week to impose 18-year term limits for Supreme Court justices, legislation Beyer said would “help restore balance to a heavily politicized court.”

'Biden has long been opposed to the practice known as “court-packing,” when one party stacks the judiciary with their own nominees: He said Thursday the Supreme Court was “not a normal court,” but in a subsequent interview on MSNBC said that expanding the number of justices could “politicize it maybe forever in a way that’s not healthy.”

“Maybe it’s just the optimist in me—I think that some of the court are beginning to realize their legitimacy is being questioned in ways that it hadn’t been questioned in the past,” Biden told MSNBC’s Nicolle Wallace on Thursday.'

'Republicans, and some centrist Democrats, are broadly opposed to adding more justices to the Supreme Court. Sen. Ted Cruz (R-Texas) introduced a constitutional amendment in 2021 that would ensure only nine justices could serve on the court at a time.' ~ Sara Dorn | Jul 5, 2023 04:57pm EDT

'The confirmation of Supreme Court Associate Justice Amy Coney Barrett eight days before the election by a partisan 52-48 vote has renewed questions about whether Democrats will try to increase the number of justices on the country’s highest court. The move is particularly polarizing because Republicans refused to consider President Obama's nominee Merrick Garland to fill a vacancy that occurred nine months before the 2016 election, but rushed to fill the seat following the death of liberal stalwart Ruth Bader Ginsburg.'

'People often use "court packing" to describe changes to the size of the Supreme Court, but it's better understood as any effort to manipulate the Court's membership for partisan ends. A political party that's engaged in court packing will usually violate norms that govern who is appointed (e.g., only appoint jurists who respect precedent) and how the appointment process works (e.g., no appointments during a presidential election).'

'Restoring a sense of balance to the Court will require Republicans and Democrats to come together and agree on new rules for how justices are chosen and the kind of jurists who serve on the Court.'

'In 2013, the Senate – then controlled by Democrats – eliminated the filibuster for circuit court nominees. That allowed circuit court judges to be confirmed with a bare majority of Senators. When Trump nominated Neil Gorsuch to the Supreme Court in 2017, the Republican-controlled Senate eliminated the filibuster for Supreme Court nominees. By the time Justice Ginsburg passed away, conditions were perfect for a breakneck confirmation.' ~ Elizabeth A. Moore | October 27, 2020

Why State High Court Justices to SCOTUS

'Potential audiences for this study are broad and diverse. Paramount among these are members of Congress and federal executive branch agencies, as both the legislative and executive branches routinely revise existing policies or make new ones without any sense of how state courts implement and enforce those policies. Consequently, those responsible for disbursement of federal funding are often unaware of the extent to which the underlying federal programs—and the policies for which those funds have been appropriated—depend for their success on underfunded and under-resourced state judiciaries. With considerable accumulated experience implementing those policies, state courts are important not merely for the judgments they render but also for the guidance they can provide to policymakers. For these reasons, this study may be useful to federal officials, state officials, federal and state judiciaries, funding agencies, and the public.'

'And the mere grant of jurisdiction to federal court does not operate to automatically oust state court from concurrent jurisdiction over federal causes of action. Quite the contrary is needed; a specific ousting of state court jurisdiction is required to deprive them of the power to adjudicate federal claims.'

'Why is the principle of concurrency so important in understanding the role of state courts in enforcing federal law and policy? Because this principle, as distinguished from the federal courts’ supplementary jurisdiction (generally a function of judicial economy), means that state courts can entertain a wide range of federal claims, including constitutional claims. Thus, Congress’s statutory delegation of certain federal responsibilities to state courts is only one part of a very large network of understandings. These statutory delegations are accompanied by an extensive volume of caselaw grounded in certain understandings of federalism and the constitutional design of American government.'

'State courts routinely hear cases arising under federal law and have done so for more than two hundred years. “[T]he constitution not only contemplated, but meant to provide for cases within the scope of the judicial power of the United States, which might yet depend before state tribunals. It was foreseen that in the exercise of their ordinary jurisdiction, state courts would incidentally take cognizance of cases arising under the constitution, the laws, and treaties of the United States.”

'In Arizona v. Evans, the Supreme Court explained that “[s]tate courts, in appropriate cases, are not merely free to—they are bound to—interpret the United States Constitution.” The same may be true for other sources of federal law. For example, when a federal statute provides a defense to a state-law cause of action, a state court may adjudicate the federal defense.' | January 2022

'State courts are the final arbiters of cases interpreting state laws and constitutions. However, there are times when cases heard in state courts can be reviewed by federal courts. The Supremacy Clause of the Constitution states that federal laws, treaties and the Constitution are the supreme laws of the land and take precedent over state laws and constitutions.'

'Even many persons who have criticized the concept of judicial review of congressional acts by the federal courts have thought that review of state acts under federal constitutional standards is soundly based in the Supremacy Clause, which makes the Constitution, laws enacted pursuant to the Constitution, and treaties the supreme law of the land, and which Congress effectuated by enacting § 25 of the Judiciary Act of 1789. Five years before Marbury v. Madison, the Court held invalid a state law as conflicting with the terms of a treaty, and seven years after Chief Justice Marshall's opinion it voided a state law as conflicting with the Constitution.' ~ FindLaw Staff -- Legally reviewed by Renee Guolee, J.D. | Last reviewed July 05, 2022

Duties and Origins of Chief Justices

'Chief Justice is the title of the presiding judge of a supreme court. The term can apply to state or federal chief justices, but is mostly used in reference to the Chief Justice of the U.S. Supreme Court.'

'At the state level, states may provide for the office of the Chief Justice in their constitution or in other legislation.'

'The office of chief justice is not explicitly established in the U.S. Constitution. While Article I, Section 3, Clause 6 of the Constitution refers to a "chief justice" as presiding over Senate trials of presidential impeachment. Article III, Section 1 of the Constitution, which establishes the Supreme Court itself, refers to all members of the Court simply as “judges.” The distinct titles of Chief Justice of the Supreme Court of the United States and Associate Justice of the Supreme Court of the United States were created by the Judiciary Act of 1789.'

'Since the Constitution mandates only that there must be a chief justice, the practice of appointment by the president with the consent of the Senate has been based solely on tradition. The Constitution does not specifically prohibit the use of other methods, as long as the chief justice is selected from among the other sitting justices.'

'While it's thought the chief justice must swear in ​presidents at inaugurations, this is a purely traditional role. According to law, any federal or state judge is empowered to administer oaths of office, and even a notary public can perform the duty, as was the case when Calvin Coolidge was sworn in as president in 1923.' ~ Robert Longley | Updated on June 03, 2021

The Role of the Chief Justice [No. 86] ~ The Federalist Society | Jul 12, 2019

'The title of chief justice is also usually accorded to the presiding judicial officer within any multi-judge court, as well as to the highest judicial officer within a state of the United States. In the United Kingdom the title of lord chief justice is held by the officer presiding over the judiciary of England and Wales.' ~ Brian Duignan

'The Chief Justice of the United States presides over the third branch of the federal government.'

'Chief Justices serve for an average of 13 years.'

.....'there is no formal list of requirements, not even being born an American citizen.'

'Numerous Chief Justices served as state and federal judges, but only five served as Associate Justices before becoming Chief Justice,'

'Responsibilities and duties of the judicial branch’s highest office were not initially clearly defined, but some are now detailed in the U.S. Code.'

'Outside the daily management of the Supreme Court, the Chief Justice is the head of the federal judicial branch and its 30,000 employees........This role brings many additional responsibilities, including addressing budgeting and building needs for the federal courts. ...... the Chief Justice serves as the head of the Judicial Conference of the United States and appoints federal judges to specialized courts such as the U.S. Foreign Intelligence Surveillance Court. In 1970, Chief Justice Burger added writing the annual report of the federal judiciary to the Chief Justice’s responsibilities.'

'Outside of the judicial branch, the Chief Justice has numerous responsibilities and ceremonial duties. The Chief Justice is the Honorary Chairman of the Board of Trustees for the Supreme Court Historical Society, Chancellor of the Board of Regents of the Smithsonian Institution, a member of the Board of Trustees of the National Gallery of Art, and the Joseph H. Hirshhorn Museum and Sculpture Garden, and the National Red Cross.'

'The job of chief judge or justice calls for an individual not only to see that administrative tasks in the court are carried out, but also to address the needs of the public, attorneys, court staff, and fellow judges.'

'Each judicial district at the state level—in trial courts and in intermediate appeals courts—has a chief judge. He or she is appointed by his or her respective state supreme court. Each state differs on the amount of terms a chief judge may serve and on age restrictions.'

'Chief justices of the state supreme courts act as head of the judiciaries in their states, in addition to serving as a justice on the court.'

'Each state has different laws providing for the selection of its chief justice(s).'

'Each state within the United States, plus the District of Columbia, has at least one supreme court, or court of last resort. Oklahoma and Texas both have two courts of last resort, one for civil appeals and one for criminal appeals.'

'The supreme courts do not hear trials of cases. They hear appeals of the decisions made in the lower trial or appellate courts.'

Distrust of Institutions

'Last year, Gallup recorded significant declines in public confidence in 11 of the 16 institutions it tracks annually, with the presidency and Supreme Court suffering the most. The share of Americans expressing a great deal or fair amount of confidence in these fell 15 and 11 percentage points, respectively.'

'The five worst-rated institutions -- newspapers, the criminal justice system, television news, big business and Congress -- stir confidence in less than 20% of Americans, with Congress, at 8%, the only one in single digits.'

'Most of the institutions rated this year are within three points of their all-time-low confidence score, including four that are at or tied with their record low. These are the police, public schools, large technology companies and big business.' ~ LYDIA SAAD | JULY 6, 2023

'Currently, fewer than two-in-ten Americans say they trust the government in Washington to do what is right “just about always” (1%) or “most of the time” (15%). This is among the lowest trust measures in nearly seven decades of polling. Last year, 20% said they trusted the government just about always or most of the time.' | SEPTEMBER 19, 2023

'Just 36% of Americans said they have confidence in higher education. Trust in major U.S. institutions overall has dropped.' ~ April Rubin | Jul 11, 2023

'The first is that we should avoid “leveling down” everyone’s quality of life for the purpose of achieving equality. It is unjust when some people have plenty of food while others are starving. But alleviating that inequality by making sure that an even greater number of people starve is clearly wrong.'

'Considerations of “science” also seemed to point in the same direction. As the presentation acknowledged, the likelihood of dying from Covid strongly depends on age. According to the CDC’s model, prioritizing essential workers over the elderly would therefore increase the overall number of deaths by between 0.5% and 6.5%. In other words, it would likely result in the preventable deaths of thousands of Americans.'

'Dooling emphasized that “racial and ethnic minority groups are underrepresented among adults > 65.” In other words, America’s elderly are too white to be considered a top priority for the distribution of the vaccine against Covid.'

'In other words, the CDC was effectively about to recommend that a greater number of African-Americans die so that the share of African-Americans who receive the vaccine is slightly higher.'

'Many of the trends that started on campus have been rapidly taking over established institutions, from Google to the Centers for Disease Control. Perhaps the most dangerous of these is that many professionals now fear to oppose any proposal that is presented, however implausibly, in the language of social justice—even if its foreseeable consequence is to kill a greater number of African-Americans in the name of “ethics.”

'A faithful reader of the newspaper of record would not even know that an important public body was, until it received massive criticism from the public, about to sacrifice thousands of American lives on the altar of a dangerous and deeply illiberal ideology.' ~ YASCHA MOUNK | DEC 23, 2020

'The survey, which was conducted in August, two months after the Supreme Court overturned the 49-year-old Roe v. Wade ruling guaranteeing a constitutional right to abortion, finds that 53% of U.S. adults disapprove of how the court handles its job. The survey also reveals a chasm between the qualities the American people say they value most in judges, such as fairness and impartiality, and the traits they perceive in Supreme Court justices. '

As written within this treatise earlier: 'For right or wrong reasons, people increasingly distrust our institutions.'

“Whether the perceptions registered in our survey are justified or not, they are worrisome,” said Annenberg Public Policy Center Director Kathleen Hall Jamieson, who has directed the survey since its inception in 2005. “For the court to play its role in our system of government, it is important that it be perceived to be an independent branch that impartially and fairly bases its decisions on the Constitution, the law, and the facts of the case.”

'If voting for a local or state judge, 90% of respondents say that having judges who rule based on the Constitution, the law, and the facts of the case is essential/very important. '

'Roberts told judges and lawyers. “You don’t want the political branches telling you what the law is. And you don’t want public opinion to be the guide of what the appropriate decision is. … But simply because people disagree with an opinion is not a basis for criticizing the legitimacy of the court.'

'Other courts: The lack of trust extends to other parts of the judiciary as well. Asked about how much they trust the federal and state courts, 48% of U.S. adults have a great deal/fair amount of trust, while 51% trust the courts not too much/not at all.'

'Most who see an ideological tilt think it’s bad: Among those who feel the court is generally liberal or conservative, the vast majority (75%) think it is bad for our system of government that the court is generally either of those.'

'Increasing the size of the court: The survey also asked Americans what they thought of proposals to increase the number of justices on the Supreme Court – a proposal that some Democrats and left-leaning critics of the court have said would restore ideological balance to it. In the survey, a plurality of respondents opposed such a proposal.' ~ Annenberg Public Policy Center | 10 OCT 2022

'National Security Agency (NSA) was routinely listening in on American conversations, and the IRS was casually sharing taxpayer records of perceived administration enemies.'

'In 1975, a bipartisan special Senate committee colloquially known as the “Church Committee” was formed and subsequently exposed all these adventurous executive branch excesses.'

'First, any high-profile investigation involving political campaigns, candidates and political figures should be subject to objective General Counsel review to ensure adequate predication required by the Attorney General Guidelines is clearly present in order to avoid another Crossfire Hurricane debacle. Contrary to Inspector General assertions, the Crossfire Hurricane case file articulated no basis for legitimate initiation required by the guidelines.'

'Third, arrest and search plans involving politically sensitive suspects should undergo prior review by an independent entity within the FBI to ensure that the level of tactical response fits the violation and relative risk presented by the subject. Safety is important but so is a response strategy that doesn’t foster perceptions of heavy-handedness, if not extrajudicial punishment or “message sending.” ~ KEVIN R. BROCK | 11/01/22 9:00 AM ET

'Four in five respondents in a July 2023 Trafalgar poll saw a “two-tiered system of justice,” in which “politicians and Washington D.C. insiders” receive better treatment than “everyday Americans.” Further, many Republicans believe that the Justice Department and FBI have targeted former president Donald Trump for investigation while handling President Joe Biden and his family with kid gloves.'

'Meantime, Swecker notes, FBI recruits have become more educated, more opinionated, more idealistic—and more liberal. Instead of following the facts of a case, modern recruits are more prone to insert their opinions into investigations. Swecker blames “indoctrination” by the elite universities from which FBI agents increasingly have graduated.'

'The Justice Department conflates angry parents at school board meetings and “domestic terrorists”; an intelligence product generated in the FBI’s Richmond field office warns of “radical-traditionalist” Catholics; an FBI whistleblower testifies about artificially inflated domestic terrorism data related to January 6 cases. All these examples suggest ideological corruption of the FBI’s core mission.' ~ James A. Gagliano | Nov 17 2023

Judiciary on Criminal Cases: Prosecution or Persecution?

'In any given year, 98% of criminal cases in the federal courts end with a plea bargain — a practice that prizes efficiency over fairness and innocence, according to a new report from the American Bar Association.'

'Aside from the paltry number of trials in the federal system, states including Pennsylvania, Texas and New York have trial rates of less than 3%. In Santa Cruz County, Ariz., there were no trials from 2010 to 2012, the report said.'

'The prevalence of plea bargaining exploded in the last several decades as a way to save money and time and to promote more certainty in outcomes. But the practice comes with "a very high cost," said Lucian Dervan, a professor at Belmont University College of Law in Nashville.' ~ Carrie Johnson | FEBRUARY 22, 2023 5:00 AM ET

'Currently federal prosecutors tout above a 95% conviction rate. This is primarily due to the fact that most cases never make it to trial. Most defendants end up taking a plea bargain rather then risk a potentially much greater prison sentence which could be dealt them if they actual went to trial and lost. Another factor is the empowerment and impunity given to both investigating authorities and prosecutors, along with an interesting trial maneuver called “Jury Instructions”. Jury instructions are basically parameters that the judge provides the jury which can greatly affect the outcome of a verdict.'

'Justice is a primary credo among investigators and prosecutors as an overall convention, nevertheless, there are also personal and professional objectives to consider. Every conviction, every arrest, as well the total dollar or quantitative amounts involved are points which help move investigators and prosecutors up the career ladder. Their positions are very subjective in that they are empowered with such discretion and impunity within the federal prosecutorial system. For example, it is usually up to the prosecutor to decide who will be prosecuted and who will not within a multi-defendant investigation. So while multiple individuals may have participated in a federal crime, some may be charged while other may not – the selection can be based on a personal tactical strategy, or esoteric reasons such as personality conflicts.'

'In fiscal year 2022, only 290 of 71,954 defendants in federal criminal cases – about 0.4% – went to trial and were acquitted, according to a Pew Research Center analysis of the latest available statistics from the federal judiciary. Another 1,379 went to trial and were found guilty (1.9%).'

'A chart that shows trials are rare in the federal criminal justice system, and acquittals are even rarer. The overwhelming majority of defendants in federal criminal cases that year did not go to trial at all. About nine-in-ten (89.5%) pleaded guilty, while another 8.2% had their case dismissed at some point in the judicial process, according to the data from the Administrative Office of the U.S. Courts.'

'These statistics include all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They do not include federal defendants whose cases were handled by magistrate judges or the much broader universe of defendants in state courts. Defendants who entered pleas of “no contest,” in which they accept criminal punishment but do not admit guilt, are also excluded. The 2022 federal fiscal year began Oct. 1, 2021, and ended Sept. 30, 2022.' ~ JOHN GRAMLICH | JUNE 14, 2023

'However, the federal government can also enforce federal criminal laws that deal with national or federal issues, including crimes that affect interstate commerce, those that cross state lines, crimes committed on federal property or Native American reservations, and those committed against the federal government and its agencies.'

'In addition to different bodies of law, federal and state crimes also differ based on which agencies investigate and prosecute them. The President of the United States holds the ultimate authority to enforce federal laws and delegates this authority to various federal agencies, including the FBI, ATF, DHS, SEC, and the Secret Service.'

'People who are convicted of federal crimes are sent to federal prison instead of state prison.'

'Since the federal government and federal prosecutors generally have more resources and staff available to devote to federal prosecution, defending against federal charges can be more difficult.'

'By contrast, people have fewer protections against being prosecuted for the same criminal conduct under federal law, and nothing precludes the federal government from prosecuting someone who has been prosecuted for the same crimes under state law.' ~ DiCindio Law LLC | November 22, 2021

'Due to federalism, both the federal government and each of the state governments have their own court systems.'

'State courts are the final arbiters of state laws and constitutions. Their interpretation of federal law or the U.S. Constitution may be appealed to the U.S. Supreme Court. The Supreme Court may choose to hear or not to hear such cases.'

'What is the problem with prosecutors, and how do we fix it? Answering those questions has been difficult, in part because there are at least seven different problems with American prosecutors. Six of those problems are relatively familiar: the power of prosecutors, the discretion they exercise, the illegality in which they too often are found to have engaged, the punitive ideology that shapes many of their practices, their often-frustrating unaccountability, and organizational inertia within prosecutors’ offices. These problems intersect, so they are difficult to address separately. The seventh problem is discussed less often but may be the most basic: the ambiguity of the prosecutor's role. That problem needs to be understood as well if progress is to be made addressing the other six.'

'Legal scholars blame prosecutors for overcrowded prisons, out-of-control snitches, and racially lopsided justice. Activists charge prosecutors with protecting trigger-happy cops. A former prosecutor concludes that no one of good conscience should want the job. There is a broad and growing sense that prosecutors in the United States are a problem—quite possibly the most pressing challenge in American criminal justice.'

'American prosecutors remain distinctive in many respects, some pertaining to the power and discretion they wield, some pertaining to the peculiar United States tradition of selecting head prosecutors by popular vote.'

'Seventy-five years ago, Robert Jackson, then Attorney General of the United States, warned in a now-famous speech that “[t]he prosecutor has more control over life, liberty, and reputation than any other person in America.”

'Prosecutors traditionally have exercised authority only within the sphere of criminal proceedings and only over actual or potential criminal defendants. For that reason, many, if not most, people do not imagine that they may be subject to prosecutorial power, and they have limited sympathy for the people they suppose will wind up in that category. That factor may have made the concentration of power in the hands of prosecutors more acceptable.'

'Instead of “discovering the commission of a crime and then looking for the man who has committed it … picking the man and then searching the law books, or putting investigators to work, to pin some offense on him.”

'Prosecutors have no legal obligation to file charges that they believe are proportionate to the defendant's culpability, nor is there any legal limit on the “discounts” prosecutors can offer in exchange for a defendant's guilty plea—or, viewed another way, the penalty prosecutors can impose for a defendant's insistence on going to trial.'

'Supreme Court has never made clear whether Brady obligations apply at all in cases that are resolved by a plea agreement rather than a trial.'

'A prosecutor's refusal to make a plea offer is virtually immune from judicial review, and courts will not intervene to prevent prosecutors from seeking severe sanctions in retaliation for a defendant's decision not to plead guilty.'

'District attorneys are reelected at very high rates and often run unopposed. Moreover, campaign rhetoric in district attorney races has traditionally focused less on policies than on issues of character.'

'One factor that may keep the number of upsets small is the limited information that voters typically have about a district attorney's performance. Even more important may be the lack of any consensus about what information voters should want.'

'With a few exceptions, prosecutors’ offices are far less welcoming than police departments to outside researchers or to criticisms or suggestions from outsiders about how they should do their work.'

'It has been common since the 1960s for scholars to analogize prosecutors’ offices to administrative agencies and to seek from prosecutors some of the procedural protections against arbitrariness that administrative law imposes on regulatory agencies.'

'To the extent that elections have any influence at all on how prosecutors do their jobs, the effect seems to be that prosecutors become more hawkish as elections approach, for fear of being labeled “soft on crime”.

'Nonetheless, there is reasonably broad agreement about some desiderata for prosecutors—energy, legal skill, evenhandedness, proportionality, respectful treatment of victims, and constitutional compliance—and about some things we want prosecutors to avoid—vindictiveness, incompetence, partiality, and deception.' ~ David Alan Sklansky | Volume publication date January 2018 :: First published as a Review in Advance on September 25, 2017