Supreme Court

1. The highest federal court in the United States, consisting of nine justices and having jurisdiction over all other courts in the nation.
2. supreme court The highest court in most states within the United States. Also called high court.

Type: Government Agency
On the web: http://www.supremecourtus.gov

The Supreme Court of the United States is the top judicial tribunal in the nation. The court, which receives about 7,000 cases to evaluate per term, includes the Chief Justice of the US and eight associate justices. The president appoints Supreme Court members, which are approved by the Senate. The court reviews the cases filed by state and federal courts and decides which ones to hear. Established under the Judiciary Act of 1789, the Supreme Court began reviewing cases in 1790 in the Merchants Exchange Building in New York City, the former US capital.

Officers:
Chief Justice: John G. Roberts Jr.
Director Data Systems: Donna Clement
Public Information Officer: Kathleen L. Arberg

Highest appellate court or court of last resort in the federal court system and in most states. The constitutionality of a tax law and a small number of tax decisions by Courts of Appeal are reviewed by the U.S. Supreme Court under its certiorari procedure.

For more information on Supreme Court of the United States, visit Britannica.com.

The Supreme Court is the final judicial authority in the U.S. system of government. Designated in Article III of the U.S. Constitution to have jurisdiction over all cases "arising under" the Constitution, the Court has the power to hear cases on appeal from the Federal appellate courts and the highest courts of each state. The Constitution also provides that the Court may act as a trial court in a limited number of cases: "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Though the Supreme Court is the final judicial authority in American government, it is not necessarily the final legal or political authority in the political system. While litigants may never appeal Supreme Court decisions to a superior court, disputes may proceed in other branches of government after a Supreme Court ruling. Congress and state legislatures may effectively alter or negate Supreme Court decisions involving statutory interpretation by amending or clarifying statutes, and may nullify constitutional decisions by amending the Constitution pursuant to Article V of the Constitution.

Several factors are important to understand the Court's role in American democracy, including: the continuing nature of the Court's relationship to Congress, the Executive Branch, and state governments; the influence of political and economic history on the Court; the intellectual underpinnings of Supreme Court decisions; and the internal dynamics of the Court as a distinct institution. Finally, the ambiguity of many key provisions of the Constitution is a source of both limits and power, for it creates the need for an authoritative voice on the Constitution's meaning and simultaneously makes such interpretations open to contestation. Created at the crossroads of law and politics, the Supreme Court's history is a history of controversy.

In addition to the possibility of legislative alteration of Supreme Court decisions, formal relationships the Constitution establishes between the Court and the other branches of the national government affects the Court's power. First, the President appoints each justice to the Court, subject to Senate confirmation. Second, Supreme Court justices, like all federal judges, serve for life, absent impeachment by the House of Representatives and removal by the Senate. Third, Congress controls the number of justices that serve on the Court at any given time. At various points in U.S. history, the Court has had as few as five justices and as many as ten. Since 1865, however, the number has held steady at nine, including one chief justice. Fourth, Congress controls the Court's operational budget, though actual compensation to the justices "shall not be diminished during [the Justices] Continuance in office." (Article III, Section 1). Fifth, the Constitution gives Congress power over much of the Court's appellate jurisdiction. These and other overlapping Constitutional functions of each branch of government have led scholars to proclaim that the three branches of government are "separate institutions, sharing powers."

Beyond constitutional overlap, the special institutional nature of the Supreme Court is important. For example, the Court lacks the power to decide cases unless the proper parties to a lawsuit bring the case to the Court. The Court also lacks the ability to implement its decisions of its own accord, having to rely upon the executive branch to carry out its will. As Alexander Hamilton wrote in Federalist 78, the Framers firmly expected that the Supreme Court, "no influence over either the sword or the purse," and would thus be "the least dangerous" branch of the three branches of government.

Marshall and the Establishment of Judicial Power

Though constrained, the Supreme Court has grown in stature and power since the time of the founding. This growth would have been nearly impossible without the deft political thinking and imaginative judicial mind of John Marshall, who served as Chief Justice from 1801–1835. The Constitution is unclear about the Court's power to declare acts of Congress unconstitutional and therefore void. Marshall resolved the matter in 1803, ruling in Marbiru v. Madison that the Court did indeed possess this power. The historical circumstances and reasoning of the case dramatically illustrate the complex nature of judicial power discussed above.

Marbury arose during the tense transfer of power from the Federalist administration of John Adams to the Democratic-Republican administration of Thomas Jefferson in the wake of the 1800 election. Just before leaving office, Adams appointed William Marbury as a justice of the peace in Washington, D.C.—one of several new judgeships created by the departing Federalist Congress trying to maintain a Federalist presence in government. After assuming office, however, Jefferson and his Secretary of State, James Madison, refused to deliver Marbury's commission to him. Seeking the judgeship, Marbury took his claim directly to the Supreme Court. Marshall confronted a conundrum: if he and the Court ordered Jefferson to give Marbury his commission, Jefferson would surely refuse to obey, making the still fledgling Court appear weak in the face of executive power. Worse, Congress could have impeached Marshall. If the Court declined to support Marbury, however, it would appear to be afraid of Jefferson. Writing for the Court, Marshall dodged having to order Jefferson to deliver the commission by holding that the Constitution did not give the Court the power to hear such cases except on appeal from a lower court. However, he went on to hold that the Judiciary Act of 1789 was unconstitutional because it gave the Court the power to hear the case in original jurisdiction. Thus, Marshall avoided a potentially crippling conflict with the President while simultaneously establishing a broad power that the Court could use in the future. It would be nearly fifty years before the Court declared another act of Congress unconstitutional in the infamous Dred Scott decision.

The issue of states' power in relation to the national government was the most important issue the Court confronted before the Civil War. The Marshall Court was instrumental in increasing the power of the national government over the states. In two controversial decisions, Fletcher v. Peck (1810) and Martin v. Hunter'S Lessee (1816), the Court declared that the Constitution gave it the power to review the constitutionality of decisions of state supreme courts and the acts of state legislatures, respectively. And in MCculloch v. Maryland (1819) and Gibbons v. Ogden (1824), the Court interpreted the "necessary and proper" and commerce clauses of Article I to give Congress broad regulatory power over the economy. The Marshall Court was also committed to protecting vested economic interests through the contracts clause of Article I (see Dartmouth College v. Woodward, 1819). Under the leadership of Chief Justice Roger B. Taney (1836–1864), the Court was somewhat more deferential to the states, giving them more room to regulate commerce on their own and to impair the obligations of contracts for public policy reasons. (Cooley v. Board of Wardens, 1851; Charles River Bridge v. Warren Bridge, 1837).

As race and sectional divide came to the fore by mid-century, the Taney Court found itself at the center of the gathering storm. In 1857, the Court made an infamous decision that made Civil War inevitable. Dred Scott v. Sandford held that African Americans did not constitute "citizens" and that the first of Henry Clay's three Great Compromises—the Missouri Compromise—was unconstitutional. The Civil War also tested the power of the president of the United States to effectively manage the country. In the Prize Cases (1863) and Ex Parte Milligan (1866), respectively, the Court found that the president could unilaterally establish a shipping blockade and seize property from "non-enemies" during a time of insurrection, but that the president could not impose martial law upon the citizens and suspend the writ of habeas corpus.

The Era of Economic Rights and Limited Government

The North's victory in the Civil War had two major consequences: the end of slavery and the unleashing of corporate development in the United States—pitting the regulatory power of governments against the interests of business and the private sector. With some exceptions, the Court showed more concern for the rights of business than with the plight of African Americans. The Reconstruction Era following the Civil War allowed the Court to interpret the recently ratified Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In 1875, Congress passed a Civil Rights Act providing for full access to public accommodations, regardless of race. The Supreme Court, however, found that such legislation exceeded Congress' power, which only extended to "the subject of slavery and its incidences" (Civil Rights Cases, 1883). Beyond striking down legislation passed to integrate American society on the basis of race, the Court in this period also upheld legislation designed to segregate American society on the basis of race. In 1896, the Court denied a Fourteenth Amendment Equal Protection challenge to the State of Louisiana's statute mandating racial segregation on trains (Plessy v. Ferguson). Some modern-day commentators point to these Reconstruction Era Court decisions regarding race as the nadir of the intellectual rigor of the Court.

Lochner v. New York epitomizes another controversial area for constitutional scholars. In 1905, the Court invalidated a New York law that regulated the maximum hours for bakers, finding that the law violated the "right to contract." Critics have pointed out that there is no textual right to contract listed in the Constitution. The Court subsequently overturned Lochner, but the case poses a perennial constitutional problem: how can the Ninth Amendment and the idea of non-enumerated rights find legitimacy with an unelected judiciary? More simply, what nontextual rights are in the Constitution and how does anyone—including the Court—know what they are?

The Supreme Court has employed two different tacks in discovering non-enumerated rights in the Constitution. During the so-called "Lochner era," it used the due process clause of the Fourteenth Amendment. In Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), for example, the Court found respectively that state laws limiting the ability to teach children foreign languages and restricting the teaching of children in private schools violated due process guarantees, which encompass freedom "from bodily restraint, … to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship [a deity] according to the dictates of [one's] own conscience." All of these aspects of liberty are "essential to the orderly pursuit of happiness by free men" and as such are protected by the Constitution under a doctrine called substantive due process.

Whereas the Court used substantive due process to limit the reach of state regulatory power, it used a restrictive interpretation of the commerce clause to limit the regulatory power of Congress in the decades before the New Deal. These cases illuminate the interactive nature of the relationship between the branches of government discussed above. The Court ruled in Hammer v. Dagenhart (1918) and A.L.A. Schechter Poultry Corp. v. United States (1935) that Congress lacked the power to pass legislation regulating child labor, and to delegate the regulation of agriculture, coal mining, and textiles to the executive branch. Because the power of Congress was critical to the success of President Franklin Delano Roosevelt's New Deal programs, F.D.R. responded to these and other decisions with a radical proposal. The president proposed expanding the number of justices on the Court to fifteen in the hope of garnering a majority that would permit Congress to pass New Deal legislation. Though Congress did not enact the plan, two justices on the Court abruptly changed their views on the commerce clause in a series of momentous decisions, including National Labor Relations Board v. Jones& Laughlin Stell (1937, which permitted Congress to regulate private employment practices) and Steward Machine Co. v. Davis, (1937, which held that Congress may sometimes exact taxes that have the effect of regulations). These famous changes in voting patterns came to be known as the "Switch in Time that Saved Nine."

The Civil Rights/Civil Liberties Era

After the New Deal crisis was resolved and the nation emerged victorious from World War II, the Court embarked on an extraordinary expansion of civil liberties and civil rights, especially under the leadership of Chief Justice Earl Warren (1953–1968). No case was more important in this regard than Brown v. Board of Education (1954), in which the Court overruled Plessy and declared that racial segregation in public schools violates the Equal Protection clause. Though it took several years before federal courts and the executive branch began enforcing the principles of Brown in a meaningful way, the decision was the springboard for later decisions that extended equal protection rights to women, gays and lesbians, aliens, children born out of wedlock, and other minorities. In the later 1960s and 1970s, the Court authorized massive integration plans for school districts; these decisions were controversial because they embroiled the federal courts in overseeing complicated institutions, a job that critics claimed lay beyond courts' capacity.

Controversy also arose with the emergence of the second form of substantive due process, as discussed above. In Griswold v. Connecticut (1965), the Court struck down a law criminalizing the use of contraceptive devices on the basis of a "right to privacy" in the Constitution, which it discovered not in the due process clause, but rather in the emanations of the penumbras of the text of the First, Third, Fourth, Fifth, and Ninth Amendments. When it proceeded to render the controversial decision in Roe v. Wade (1973), that the right to privacy protects a woman's right to have an abortion, the Court placed the right to privacy back into the Fourteenth Amendment's due process clause. Recently, however, the Court has revived the "textual" discovery of rights in Saenz v. Roe (1999). The Court in Saenz found that one component of the non-enumerated right to travel is derived from the Privileges and Immunities Clause of the Fourteenth Amendment.

The Warren Court also accelerated the application of the Bill of Rights to the states. Originally, the Bill of Rights was intended to protect individuals only from the actions of the federal government (Barron v. Baltimore, 1833). Nevertheless, in 1925 the Court ruled that because freedom of speech is a fundamental liberty protected by the due process clause of the Fourteenth Amendment, it is enforceable against state and local governments as well (Gitlow v. New York). By the 1960s, the Court had "incorporated" other clauses of the First Amendment to apply to the states. The incorporation of the Fourth, Fifth, and Sixth Amendments coincided with the Warren Court's so-called "criminal rights revolution," which generated great controversy in the context of the increasing crime rates and cultural upheavals of the sixties. Though appointed by the Republican President Eisenhower, Warren presided over what has been characterized as the most liberal period during the Court's history. The Court's rulings in Mapp v. Ohio (1961, holding that evidence obtained in violation of the Fourth Amendment must be excluded from trial), Gideon v. Wainwright (1963, applying the Sixth Amendment's right to retain counsel for the indigent extends against the states) and Miranda v. Arizona (1966, requiring police to warn suspects of their rights in custodial interrogations) greatly expanded the rights of the criminally accused.

With Justice William Brennan leading the way, the Warren Court also dramatically liberalized the First Amendment law of free speech and press. Before the late 1950s, speech could generally be punished if it had a "tendency" to cause violence or social harm. Building on the famous dissenting free speech decisions of Justices Oliver Wendell Holmes and Louis Brandeis earlier in the century, the Warren Court provided substantially more freedom for such controversial expression as pornography, vibrant (even vicious) criticism of public officials, hate speech, and offensive speech. Concisely, modern speech doctrine protects expression unless it constitutes hardcore pornography ("obscenity"), libel, threats, or speech that is likely to trigger imminent violence. (See, for example, New York Times v. Sullivan, 1964; Brandenburg v. Ohio, 1969.)

Recent Trends: Consolidation, and the New Substantive Due Process and Federalism

After Warren left the Court, President Nixon—who had campaigned against the liberalism of the Warren era—nominated the more conservative Warren Burger in the hope of ending the reign of judicial liberalism. But under Chief Justices Burger (1969–1986) and William Rehnquist (1986 to the present), the Court has generally consolidated the liberties of the Warren Era rather than radically reversing course. Though the Court has cut back some Fourth and Fifth Amendment rights, limited the reach of affirmative action (Adarand Constructors, Inc. v. Pena, 1995) and limited the scope of desegregation of the schools and the equal protection clause (see, for example, Freeman v. Pitts, 1992; Washington v. Davis, 1976), it has also maintained the fundamental right to an abortion (Planned Parenthood of Southeastern Pennsylvania v. Casey 1992), expanded the protection of free speech (R.A.V. v. St. Paul, 1992), and reaffirmed the Miranda decision (Dickerson v. United States, 2000).

The Burger Court retreated from its effort to reinforce the states' rights provisions of the Tenth Amendment, but the Rehnquist Court has revived the doctrine of federalism under the aegis of the commerce clause. From the time of the New Deal until near the end of the twentieth century, the Court had regularly accorded an ever-increasing amount of power to Congress. The Supreme Court has upheld Congressional power under the Commerce Clause to regulate such things as wheat production for home usage and public accommodations on the basis of race. (Wickard v. Filburn, 1942; Heart of Atlanta Motel, 1964). Since 1995, however, a seismic shift has occurred in the Court's jurisprudence regarding Congressional power. The Court began what is called "the new federalism" by curtailing Congress' power to prohibit the possession of weapons near schools. (United States v. Lopez, 1995). In Printz v. United States (1997), it ruled that Congress may not force state executive officers to enforce federal gun control legislation. In United States v. Morrison (2000), the Court struck down a federal law that provided civil remedies for victims of gender motivated attacks. And in Board of Trustees v. Garrett (2001), the Court concluded that Congress did not have the authority to hold states liable for violations of the Americans with Disabilities Act.

This change in the Supreme Court jurisprudence was not entirely unforeseeable. With seven of the Justices on the Court being appointed by Republican presidents, the more curious issue is why the group of the five most conservative justices waited so long to construct the new federalism. The five justices that formed the majority in each of the cases mentioned above (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor) had all served together since 1991, yet the lodestar of the Court's more conservative decisions and the number of times in which the conservative block voted together did not begin in earnest until 1995.

These same five justices also became crucial in Bush v. Gore (2000), the case that resolved the 2000 presidential election and is already one of the most controversial cases in the Court's history. The Court issued a stay, 5–4, mandating that the State of Florida stop counting Presidential ballots on December 9, 2000. The five justices, along with Justices Souter and Breyer in part, ruled in the per curiam opinion that such counting absent uniform statewide standards violated the Equal Protection Clause of the Fourteenth Amendment and that all counting efforts had to have been completed by December 12, 2000—the same day the Court issued the opinion and three days after the Court halted the counting of the ballots.

Bibliography

Ackerman, Bruce. We the People, Volume I: Foundations. Cambridge, Mass.: Harvard University Press, 1991.

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1998.

Bell, Derrick A. And We Are Not Saved: The Elusive Quest For Racial Justice. New York: Basic Books, 1989.

Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. 2nd ed. New Haven, Conn.: Yale University Press, 1986.

Clayton, Cornell W., and Howard Gillman, eds. Supreme Court Decision making: New Institutionalist Approaches. Chicago: University of Chicago Press, 1999.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Griffin, Stephen M. American Constitutionalism: From Theory to Practice. Princeton, N.J.: Princeton University Press, 1999.

Horwitz, Morton J. The Transformation of American Law, 1780–1860: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

McClosky, Robert G. The American Supreme Court. 3d ed. Chicago: University of Chicago Press, 2000.

Neustadt, Richard E. Presidential Power: The Politics of Leadership. New York: Wiley, 1960.

O'Brien, David M. Storm Center: The Supreme Court in American Politics. New York: Norton, 2000.

Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1991.

Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional Law." Harvard Law Review 7(1893): 129.

Prior to the twentieth century, the United States Supreme Court issued few important decisions concerning education, and virtually none dealing with schooling at the elementary and secondary levels. Schooling has always been considered primarily a state and local government function in America, and it was not until well into the twentieth century that the Court seriously imposed on the states provisions of the U.S. Constitution that have turned out to be importantly relevant to education.

By contrast, in the second half of the twentieth century, the Court became a major force in shaping American education, interacting with most of the key educational policy issues confronting society during that era. Many of these issues have been extraordinarily controversial, both as education questions and as legal questions.

Especially from the mid-1950s through the mid-1970s, the Court largely allied itself with the views of "liberals" and thwarted state and local educational policies that were seen to run counter to "liberal" values. Starting in the late 1970s and continuing into the early twenty-first century, however, the Court has become more cautious about imposing Constitutional restraints on the educational process. The decisive, if changing, role of the Court in American education is illustrated by decisions in three major areas: religion, race, and the individual rights of students.

Religion

Following World War I, nativist movements around the nation prompted some state legislatures to try to restrict, or even close, private schools. But in a series of decisions in the 1920s - most importantly Meyerv. Nebraska and Pierce v. Society of Sisters - the Court declared that parents have a federal Constitutional right to educate their children in private schools, subject to reasonable regulation of those schools by the state. This legal principle, based in the due process clause of the Fourteenth Amendment to the U.S. Constitution, has helped preserve the Catholic school system that grew up in the nineteenth century in response to Protestant domination of public schools and the insistence at the time on Protestant-based prayer and Bible reading in public schools. In 1972, in an even greater deference to religiously based parental claims, the Court decided in Wisconsin v. Yoder that Amish parents, given their long history of responsible other-worldliness, had a due process right to withhold their children from school once they reach age sixteen.

Starting in the 1960s, however, the Court's attention turned to cleansing the public schools of religion. For example, in Engel v. Vitale and School District v. Schempp, it prohibited government-sponsored school prayer and Bible reading, and in Epperson v. Arkansas it voided a ban on the teaching of evolution in public schools as violations of the First Amendment's prohibition against the "establishment" of religion.

At the same time the Court was insisting that the public schools must be secular, it also became leery of direct public financial assistance of private elementary and secondary schools, which were, in the 1960s and 1970s, overwhelmingly Catholic. To be sure, in three earlier cases the Court upheld the public provision of bus rides in Everson v. Board of Education and regular textbooks in Board of Educationv. Allen to children attending nonpublic schools and the exemption of religious schools from the property tax in Walz v. Tax Commission. Nevertheless, in the early 1970s the Court announced a series of decisions - most importantly Lemon v. Kurtzman and Committee for Public Education v. Nyquist - that invalidated financial aid to nonpublic schools and their users. These decisions were based primarily on the theory that the "primary effect" of this funding was the support of religion. Overall, then, by the mid-1970s the Court seemed committed to an interpretation of the First Amendment's "establishment" clause that called for a "high wall of separation" between church and state.

In the last quarter of the twentieth century, the Court held fast to its opposition to prayer in the public schools. In Wallace v. Jaffree it extended the ban in 1985 to cover a religiously motivated, required "moment of silence," with the Lee v. Weisman decision in 1992 to include invocations and benedictions at public school graduation ceremonies, and in 2000 to student-led prayers at high school football games in the Santa Fe Independent School District v. Doe decision. In the same vein, in Edwards v. Aguillard in 1987 it struck down as violating the "establishment clause" a law seeking to pair the teaching of evolution with creation science, and in 1994 it invalidated a public school district specially constructed for a group of Hasidic Jews in Board of Education of Kiryas Joel v. Grumet.

Yet the Court has also become much more deferential to policies designed to accommodate religious freedom inside schools. Concern for the rights of students to their First Amendment guaranteed "free exercise" of religion has led to the development of "equal access" policies: some adopted by educational institutions; others enacted by legislatures. The Court has upheld these arrangements, allowing student religious groups to use school facilities once that privilege has been accorded to other student groups, in 1981 in Widmar v. Vincent at the university level and in Board of Education of West-side Community Schools v. Mergens in 1990 at the secondary-school level. Moreover, in 1995, on "free speech" grounds, the Court held in Rosenberger v. University of Virginia that when college student fees were used to fund various student newspapers, religious student groups had to be included as beneficiaries.

Moreover, on the issue of the aid to private schools, starting in the 1980s the Court began to permit many more types of financial assistance. These have ranged from tax deductions for financial contributions made to private schools in Mueller v. Allen; to the provision of a sign language interpreter for a deaf student in a private school in Zobrest v. Catalina Foothills School District; reading specialists and similar assistance for low-income private school pupils in Agostini v. Felton; and computers and other educational materials to private schools in Mitchellv. Helms. At the level of higher education, the Court even upheld a program under which a state would pay for a student's education to become a clergyman in Witters v. Washington Department of Services for the Blind.

In sum, the Court has clearly backed away from a rigid adherence to the "high wall of separation" vision of the First Amendment. Yet, the legal doctrine in this area has become so convoluted that in 2001 legal scholars were quite uncertain about whether it is constitutional for states and school districts to adopt, as three had, school choice plans that permit families to pay for tuition at private schools (including religious schools) with publicly funded vouchers.

Race

Starting in 1954 the Court centrally immersed itself in issues of race and American education by taking the lead in dismantling the system of official and intentional segregation that marked American public schools not only in the South, but also in many school districts throughout the nation. Before its famous 1954 decision in Brown v. Board of Education, the Court tolerated a scheme of "separate but equal" as in Plessy v. Ferguson (1896). During the twenty-years leading up to Brown, the Court issued several-decisions - Missouri ex rel Gaines v. Canada and Sweat v. Painter - invalidating evasive schemes that pretended to treat whites and blacks equally, but clearly did not. But in Brown I, the Court relied upon the "equal protection" clause of the Fourteenth Amendment to declare "separate" inherently "unequal" and a year later, in Brown II, it ordered public school desegregation "with all deliberate speed."

Although the Court then became embroiled in "massive resistance" strategies throughout much of the South, it held its ground. For example, in 1964 the Griffin v. County School Board decision prevented districts from closing their schools to avoid desegregation. In 1968 it rejected in Green v. County School Board purported "choice" plans that left schools identifiably black and white. In 1971 the Swann v. Charlotte-Mecklenburg Board of Education decision refused to approve a neighborhood school assignment policy that maintained the prior system of black and white schools. Norwood v. Harrison blocked in 1973 desegregation-evading schemes that sought to fund an alternative system of private "white academies," and the Runyon v. McCrary decision in 1976 precluded private schools from excluding applicants because they were black.

In 1973 in Keyes v. School District No. 1, the Court also extended the reach of Brown to northern and western school districts when it could be shown that officials had deliberately drawn school lines, erected new schools, and made other decisions on the basis of race. And with the help of Congressional enactment of the 1964 Civil Rights Act, the intervention of federal government officials from the executive branch, and the tireless work of many federal district judges often working in a hostile local environment, what has became known as formal "de jure" school segregation was rooted out.

Yet over time it became clear that continued racial isolation in public schools and the accompanying continued lower academic achievement of non-white pupils is not so easily blamed on the official racism of identified state and local school officials. The combination of (1) individual residential decisions by white (and non-white) families; (2) the suburbanization of America and the traditional existence outside the South of many small school districts surrounding the large central city district;(3) national and local housing policies; (4) persistent differences in family poverty between whites and non-whites; and other factors demonstrate that de facto school segregation, especially in urban cities, is not primarily caused by, and can not easily be eliminated by, the deliberate actions of local public school officials.

Although some legal and policy scholars and political leaders called for the end of racial isolation whatever its cause, others began to challenge the fairness, desirability, or feasibility of doing so. By 1974 a closely divided Supreme Court gave an early signal that it was going to start withdrawing the judiciary from this battle. It refused to bring the Detroit suburbs into a proposed metropolitan remedy of a school segregation case in which the federal district judge was presented with a Detroit public school district that had already become overwhelmingly populated by black children in Milliken v. Bradley. Starting in the 1990s, it has been telling lower federal courts to relinquish their supervision of school districts, thereby freeing local officials from the affirmative obligation to keep their schools from becoming racially identifable, for instance Board of Education of Oklahoma City Public Schools v. Dowell and Freeman v. Pitts. And it voided a remedy adopted by a federal district judge in a Kansas City case that had imposed substantial obligations upon the state and was seen impermissibly to involve the surrounding suburbs in Missouri v. Jenkins.

Nonetheless, something of a political turnaround took place in many venues across the nation. Concluding that merely ending obvious official discrimination against minorities was insufficient, many public and private entities (prodded by federal agencies) began to engage in affirmative action. Some saw this as a way to remedy institutional or invisible racism that continued; others viewed it as desirable social policy even in a setting that was no longer officially hostile to racial minorities. Selective colleges and universities began to give preferences to non-white applicants; some employers, including school district employers, did the same; some school districts that had previously fought tenaciously for segregation turned completely about and were now committed to racially balanced schools.

But this practice has generated its own backlash, into which the Court has been drawn. Although a badly divided Court declared in 1978 that race was one of the many factors that colleges could legally employ in order to decide who to admit as students in Regents of the University of California v. Bakke, by the mid-1990s the Court had became much more hostile to affirmative action efforts outside of education. If the official action was not racially neutral and was not part of a remedy designed to undo past specific acts of illegal segregation, then the Court decided, in Adarand Constructors, Inc. v. Pena, that deliberate race-based actions said to benefit minorities were just as illegal as those adopted to harm them.

As a result, legal scholars in 2001 were uncertain whether affirmative action engaged in by selective high schools and selective colleges was still permissible. Indeed, it was unclear whether racially prompted school busing and other school assignment decisions at the elementary and secondary school levels could be kept in place once a formerly discriminating school district had been declared "unitary" by having eliminated the past vestiges of official segregation.

Individual Rights of Students

The Court's dealing with free speech and other constitutional rights of individual public school children has undergone something of a zig-zag as well. During World War II, the Court relied upon the First Amendment's "free speech" clause to uphold the refusal of religiously motivated Jehovah's Witnesses to participate in the flag salute at school in West Virginia Board of Education v. Barnette. Student free speech rights were much further strengthened during the Vietnam War, when the Court protected affirmative student rights of expression at school in the form of non-disruptive wearing of antiwar arm bands in Tinker v. Des Moines School District. In that same period, the Court extended to students the right to a hearing before serious disciplinary penalties are imposed on them, thereby bringing the Fourteenth Amendment's "procedural due process" clause into the schoolhouse in Goss v. Lopez. Later, in Board of Education Island Trees Union Free School District No. 26 v. Pico, the Court, on free speech grounds, thwarted religiously inspired efforts to rid school libraries of books that offended some parent groups.

But in subsequent cases, starting in the late 1970s, the Court has drawn back from this pro-student rights' agenda. It allowed public officials to discipline a student who gave a "lewd" speech at an assembly in Bethel School District No. 403 v. Frazer; to delete pages from a high school student newspaper in Hazelwood School District v. Kuhlmeier; to impose corporal punishment on public school children in Ingraham v. Wright; and to search student possessions (e.g., purses) under circumstances that would be illegal if done to adults in normal circumstances in New Jersey v. T.L.O. The Court also declined to get involved with academic dismissals at the college level in its decision Board of Curators of the University of Missouri v. Horowitz.

Hence, while it remains true that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," it is also now quite clear that school children have many fewer rights than adults have.

Although the Court has involved itself in many additional important issues as well (e.g., teachers' rights, gender discrimination, bilingual education, and the rights of disabled children), the three areas discussed illustrate not only the Court's great importance to American education, but also the Court's own shifting view of its role.

Bibliography

Alexander, Kern, and Alexander, David. 2000. American Public School Law, 5th edition. Belmont, CA: West/Thomson Learning.

Goldstein, Stephen R.; Daniel, Philip T.; and Gee, E. Gordon. 1995. Law and Public Education: Cases and Materials, 3rd edition. Charlottesville, VA: Michie.

McCarthy, Martha M.; Cambron-McCabe, Nelda H.; and Thomas, Stephen B. 1997. Public School Law: Teachers' and Students' Rights, 4th edition. Boston: Allyn and Bacon.

Reutter, E. Edmund. 1998. The Law of Public Education, 4th edition. Westbury, NY: Foundation.

Yudorf, Mark G.; Kirp, David L.; Levin, Betsy; and Moran, Rachel F. 2001. Educational Policy and the Law. Belmont, CA: West/Thomson Learning.

— STEPHEN D. SUGARMAN

The Supreme Court of the United States is the highest federal court. Although it was explicitly recognized in Article III of the Constitution, it was not formally established until passage of the Judiciary Act of 1789 (1 Stat. 73) and was not organized until 1790. Though its size and jurisdiction have changed over time, the Supreme Court has fulfilled its two main functions: acting as the final interpreter of state and federal law and establishing procedural rules for the federal courts.

Composition

The Supreme Court, some- times called the High Court, is comprised of a chief justice and eight associate justices. Article III provides that the justices of the Court are to be appointed by the president with the advice and consent of the Senate. Once appointed, a justice may not be removed from office except by congressional impeachment. Because of this provision, many justices have remained on the bench into their eighties.

In 1789 the Court was initially comprised of six members, but membership was increased to seven in 1807. In 1837 an eighth and ninth justice were added, and in 1863 the number rose to ten. Congress lowered the number to eight to prevent President Andrew Johnson from appointing anyone, and since 1869 the Court has been comprised of nine justices.

The only modern attempt to alter the size of the Court occurred in 1937, when President Franklin D. Roosevelt attempted to "pack" the Court by trying to add justices more sympathetic to his political ideals. Between 1935 and 1937, the Supreme Court struck down as unconstitutional numerous pieces of Roosevelt's New Deal program that attempted to regulate the national economy. Most of the conservative judges who voted against the New Deal statutes were over the age of seventy. Roosevelt proposed that justices be allowed to retire at age seventy with full pay. Any judge who declined this offer would be forced to have an assistant with full voting rights. This plan was met with hostility by Democrats and Republicans and ultimately rejected as an act of political interference.

When the office of chief justice is vacant, the president may choose the new chief justice from among the associate justices but does not need to do so. Whenever the chief justice is unable to perform his or her duties or the office is vacant, the associate justice who has been on the Court the longest performs the duties. The Court can take official action with as few as six members joining in deliberation. However, extremely important cases will sometimes be postponed until all nine justices can participate.

Court Term

The Court sits in Washington, D.C., and begins its term on the first Monday in October of each year. It may also hold adjourned terms or special terms whenever required. These special calendars are reserved for emergency matters that usually occur when the Court is in recess between July and October. Between October and June 30 of the following year, the Court hears oral arguments for each case in its courtroom, confers and votes on the case, and then assigns a justice to write the majority opinion. An opinion must be released on every case by the end of the Court's term. However, if the Court cannot agree on how to resolve a case, it may hold the case over until the next term and schedule further oral arguments.

Administration of the Court

The law provides for the appointment of a clerk of the Supreme Court, a deputy clerk, a marshall, a court reporter, a librarian, judicial law clerks, secretaries to the justices, and an administrative assistant to help with court management. The law also provides for the printing of Supreme Court decisions to ensure that they will be available to the public. The Court also disseminates its opinions electronically.

Jurisdiction

The Judiciary Act of 1789 gave the Supreme Court authority to hear certain appeals brought from the lower federal courts and the state courts. The Court was also given power to issue various kinds of orders, or writs, to enforce its decisions.

Article III of the Constitution declares that the Supreme Court shall have original jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party… ." Original jurisdiction is the authority to hear a case from the outset. Nevertheless, Congress has enacted legislation giving the district courts concurrent jurisdiction in cases dealing with ambassadors and foreign consul as well as in cases between the U.S. government and one or more state governments. The Supreme Court retains exclusive jurisdiction only in suits between state governments, which often involve boundary disputes. These cases arise infrequently and are usually placed before special masters who hear the evidence, make findings, and recommend a decision that is acceptable to the Court.

Article III states that the Supreme Court's appellate jurisdiction extends to all federal cases "with such Exceptions, and under such Regulations as the Congress shall make." Appellate cases coming to the Court from the lower federal courts usually come from the thirteen courts of appeals, although they may come from the Court of Military Appeals or, under special circumstances, directly from the district courts. Appellate cases may also come from the state courts of last resort, usually the state's supreme court.

Until 1891 losing parties in the lower federal courts and state courts of last resort had the right to appeal their cases to the Supreme Court. The Court's docket was crowded with appeals, many of which raised routine or frivolous claims. In 1891 Congress created nine courts of appeals to correct errors in routine cases. (28 U.S.C.A. ch. 3). This reduced the Supreme Court's caseload, but parties often retained statutory rights to have their cases reviewed by the Court.

In 1925 Congress reformed, at the Court's insistence, the Supreme Court's appellate jurisdiction by restricting the categories of cases in which litigants were afforded an appeal by right to the Supreme Court. In addition, the Judiciary Act of 1925, 43 Stat. 936, gave the Court the power to issue writs of certiorari to review all cases, federal or state, posing "federal questions of substance." The writ of certiorari gives the Court discretionary review, allowing it to address some issues and ignore others. Because of these reforms, the courts of appeals are the final decision-making courts in 98 percent of federal cases.

In 1988 Congress passed the Act to Improve the Administration of Justice, 102 Stat. 663. This law eliminated most appeals by right to the Supreme Court, requiring the Court to hear appeals only in cases involving federal civil rights laws, legislative reapportionment, federal antitrust actions, and a few other matters. As a result of this growth in discretionary jurisdiction, the Supreme Court has the ability to set its own agenda.

A party who seeks review of a decision petitions the Court for a writ of certiorari, an ancient pleading form that grants the right for review. The justices deliberate in private to decide whether the issues presented by the case are significant enough to merit review. They operate under an informal rule of four, which means that certiorari will be granted if any four justices favor it. If certiorari is granted, the justices can decide the case on the papers submitted or schedule a full argument before the Court. If certiorari is denied, the matter ends there. With discretionary review, the justices have complete freedom in deciding whether to hear the case, and no one may question or appeal their decision.

The Supreme Court also has special jurisdiction to answer certified questions sent to it from a federal court of appeals or from the U.S. Claims Court. The Supreme Court can either give instructions that the lower court is bound to follow or require the court to provide the record so that the Supreme Court can decide the entire lawsuit. Certification is rarely used.

Decisions

The decisions of the Supreme Court, whether by a denial of certiorari or by an opinion issued following oral argument, are final and cannot be appealed. A Supreme Court decision based on an interpretation of the Constitution may be changed by constitutional amendment. Congress may modify a decision that is based on the interpretation of an act of Congress by passing a law that directs the Court as to congressional intent and purpose. Finally, the Court may overrule itself, although it rarely does so.

Rule Making

Congress has conferred upon the Supreme Court the power to prescribe rules of procedure that the Court and the lower federal courts must follow. The Court has promulgated rules that govern civil and criminal cases in the district courts, bankruptcy proceedings, admiralty cases, copyrights cases, and appellate proceedings.

See: judicial review.

A federal court; the highest body in the judicial branch. The Supreme Court is composed of a chief justice and eight associate justices, all of whom are appointed by the president and confirmed by the Senate. (See photo, next page.) They serve on the Court as long as they choose, subject only to impeachment. Each state also has a supreme court; these courts are all courts of appeals, primarily hearing cases that have already been tried. The federal Supreme Court (“the” Supreme Court) has the final word on interpretation of all laws and of the Constitution itself.