Text: Supreme Court Justices Vote in Order of Seniority
Several factors can determine the outcome of a case, including personal opinions of individual justices, who may or may not agree on how their predecessors have interpreted an issue.
Regardless of their personal opinions, however, the justices must come together to form a final opinion, once they have decided to hear a case. When a date is set for oral argument, each side is allowed only 30 minutes to make their point. At least six of the nine Supreme Court justices must be present to hear a case.
When all the arguments have been heard for the day, only the nine justices meet to discuss those cases. The chief justice begins by summarizing a particular case and giving his views on it. After he has spoken, the other eight justices speak in order of seniority. There is no formal record kept at these meetings, except what personal notes individual justices may take.
During each justice's time to speak, he or she will give an opinion on the matter at hand. They may also try to persuade dissenting colleagues or, if undecided, to gather more information.
When the chief justice believes that no more discussion is needed, he calls for a vote. As they did when speaking, the justices vote in the same order, with the chief justice casting his vote first.
Once a vote has been taken, an opinion is assigned. If the chief justice is in the majority, he can either appoint another majority member to write the opinion, or he can write it himself. If the chief justice is in the minority, the senior associate justice in the majority makes the assignment. Again, if the senior associate justice wants to, he can write the opinion himself. Otherwise, he will pass it on to another justice in the majority.
Once an opinion is written, the justice who wrote it circulates it to the rest of the Court members, who have the option of adding their own additions or suggestions, which often can be polar opposites. In writing opinions, justices have been known to change their mind, and thus shift from the minority to the majority and vice versa.
Although only one justice writes the Court's final opinion, any other justice is free to write his or her own thoughts on a case, also. In the end, the final opinion must have the approval of at least five justices before it is released as the opinion of the Court.
Today's Supreme Court is divided into two camps, which is not to say that they never come together in their opinions. Rather, it is their outlook that determines how their opinions are reached.
John Paul Stevens, David Souter, Ruth Bader Ginsberg (one of two female justices) and Stephen Breyer (the newest member) are considered to be the modern liberal justices on the Court. In the words of one scholar, they "remain children of the (Franklin D.) Roosevelt revolution," in that they believe that the "social landscape" of the country needs to be in a constant state of change.
Chief Justice William Rehnquist, Antonin Scalia, Anthony Kennedy, Sandra Day O'Connor (the other female jurist) and Clarence Thomas (the only African American on the Court at present) are considered to be the modern conservative justices on the Court. These five remain "children of the Philadelphia (Constitutional) Convention," in that they look to the original intent that the framers had when they drafted the Constitution.
Although the conservative justices comprise the majority, there are two members of this group whom some have called the "swing bloc." Justices Sandra Day O'Connor and Anthony Kennedy often cross over to form a majority with one side or the other.
At the same time, Justice Clarence Thomas has emerged as a leader on the Court in pulling the other justices to his point of view through his adroitness in not only interpreting the Constitution, but his personal research and understanding of what the framers originally intended.
Despite personal opinion, however, there is one historical precedent that continues to underscore the Court's decisions: judicial review.
A unique characteristic exercised not only by the Supreme Court, but by the entire U.S. judicial system, judicial review is never mentioned in the Constitution. It is, however, considered an unwritten rule that allows a court "to declare invalid and thus set aside legislation or executive action which has been deemed contrary" to the meaning or interpretation of the Constitution.
The concept of judicial review was first challenged in one of the Court's earliest and most celebrated cases in "Marbury v. Madison," in 1803, when William Marbury was appointed a justice of the peace by outgoing president, John Adams. Marbury had never received his commission, however, because of infighting between Adams and the new president, Thomas Jefferson. Marbury asked the Supreme Court to issue a "writ of mandamus," which forced government officials to perform their duties, even though they may disagree with the results.
In a unanimous decision by the Supreme Court, in his opinion, Chief Justice John Marshall laid the groundwork for the future authority of the Court by stating that the judicial branch of the government is responsible "to say what the law is.... This is the very essence of judicial duty." Although the Judiciary Act of 1789 had allowed the Court to issue writs of mandamus in the first place, the justices considered them contradictory to the meaning of the Constitution.
Marbury v. Madison thus validated the mission of the Supreme Court, as well as all other U.S. courts. Although Marbury v. Madison determined that the justices could not amend the law or the Constitution -- they could only interpret it -- the premise of judicial review gave the Court a much greater power.
As such, over the years the Court has been criticized for some of its interpretations. During its early years, for example, the Court favored the federalist system of a centralized hands-on government. But from about 1860 to the present day, most times the Court has looked at how states treat their citizens, a point which rankles many.
It is felt by some that since the Court is an autonomous institution, it should practice "judicial restraint," that is, it should be more lenient in interpreting laws that have been passed by democratically elected bodies.
Over the years, the Supreme Court has adopted a variety of attitudes toward its duty as the nation's highest tribunal. And although some may disagree with an opinion, the Court has never been challenged independently. In the result of an unpopular Supreme Court ruling against a federal law or constitutional point, the only recourse is for Congress to pass new legislation or amend the Constitution. To a large extent, this is exactly what the framers wanted: a checks and balance system, that would not allow any one branch of the government -- executive, legislative or judicial -- to have precedence over another.
In that, the Court reigns supreme.
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