The History of The Supreme Court Home History Teacher Resources Interactive Time Line Television

The Court Today

By John Moore, Professor Emeritus of History, California State Polytechnic University, Pomona CA

The Court in Transition

This historic situation, along with the media-arresting nominations that the President made (first John Roberts, then the unavailing choice of Harriet Miers, and finally the pick of Samuel Alito), the Senate hearings for the nominees, and the early decisions handed down by the new Roberts Court in the first months of 2006, gave demonstration of the workings of the Court, its relationship to the other branches of the national government, its impact on our individual lives, and the crucial role it plays in American society. That is, "the Court today" has proved as relevant and current as it has ever been in U.S. history.

Justice O'Connor, nominated for the Court by President Ronald Reagan in 1981, became the first woman to serve in that exalted position (Ruth Bader Ginsberg, appointed by President Bill Clinton in 1993, became the second). Over the years of O'Connor's service she was known as a "swing" voter on the most contentious cases before the Court, including, significantly, her tie-breaking vote in Planned Parenthood v. Casey (1992) to reaffirm the 1973 Roe v. Wade decision legalizing abortion.

Chief Justice Rehnquist first entered the Court in 1972 as an Associate Justice, appointed by President Richard Nixon. Elevated to the position of Chief Justice by President Reagan in 1986, Rehnquist presided over a Court often split on major issues and gently directed it in a slightly more conservative direction after the dramatic years of the Warren Court (1953-1969) and the Burger Court (1969-1986).

Following O'Connor's announcement, President Bush nominated Appeals Court Judge John G. Roberts, Jr. to take her seat. As the Senate prepared to hold hearings on the Roberts nomination, Rehnquist died and the President promptly elevated the Roberts selection to the now vacated post of Chief Justice, leaving the O'Connor position still available for a second presidential appointment. Because Rehnquist had been considered a "conservative" and O'Connor a "moderate," competing interest groups suddenly saw either a promising or an ominous future for the Court. Republicans--believing Roberts to be faithfully conservative--craved (and expected) another right-leaning appointment from the President. Given the tight split on key cases that had appeared before the Rehnquist Court, the placement of two new conservatives in the vacated posts seemed in the fall of 2005 to promise at least a 5-4 conservative majority for the foreseeable future. Thus Democrats, willing to approve Roberts, hoped that he would prove to be less hardened than he appeared and urged the President to appoint a replacement for O'Connor more in line with her judicial temperament. On September 29, by a 78-22 vote, the Senate confirmed Roberts. The day he donned his robes to assume his new position--October 3--the President announced his choice for O'Connor's seat: Harriet Ellan Miers, at the time White House counsel. On October 27, within less than a month after her nomination, Ms Miers, beleaguered with swelling opposition from conservatives within the Republican Party, announced her withdrawal from consideration by the Judiciary Committee. On October 31, President Bush picked Judge Samuel A. Alito, Jr. as his next choice for the O'Connor position. Judge Alito, considered a dependable conservative, was at the time of his nomination a Judge on the U.S. Third Circuit Court of Appeals.

As the country looked forward to the 2005-2006 Court, there remained uncertainty as to how exactly the new Court would bend. This is the case principally because it is very difficult to predict how an appointed and confirmed Justice will make decisions once on the Court. In the past, some Justices have surprised even the closest observers of their records. Few would have suspected that Earl Warren, a Republican appointed by the Republican Dwight Eisenhower, would become one of the most activist Chief Justices in American history. Sitting Justices Sandra Day O'Connor, John Paul Stevens, Anthony M. Kennedy, and David H. Souter have all turned out differently in their opinions than supporters and distracters would have guessed at the time of their appointments. This historical uncertainty lends a measure of special drama to the confirmation hearings.

To help us appreciate as fully as possible the situation facing the Court today we will review 1) the way Supreme Court Justices are appointed and confirmed, 2) the way cases get to the Supreme Court, 3) the Court's recent history--from the Warren and Burger Courts to the Rehnquist Court, 4) the role of other current justices, 4) John G. Roberts, Jr.'s biography, and 5) Samuel Alito's biography. Finally, we will suggest a lesson plan and offer a select bibliography for further guidance.

How Cases Get to the Supreme Court

Article 3, Section 2, paragraph 2 of the U.S. Constitution denotes the Supreme Court's "original jurisdiction." This authority is limited to "cases affecting ambassadors, other public ministers and consuls [diplomats], and those in which a state shall be a party." In all other cases "the Supreme Court shall have appellate jurisdiction." The high Court rarely handles a case based on its original jurisdiction. (The Court would be expected to do so if there were a dispute between two or more states). Virtually all the cases before the Court arrive there on appeal.

The Judiciary Act of 1789 authorized the Court to take appeals from state courts as well as lower national courts. In Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821), the Marshall Court confirmed this appellate jurisdiction in state cases.

For a case to come before the Supreme Court from a state, a national question must be involved (for example, a constitutional question or a question involving a national law or treaty), and typically litigants must have exhausted their appeals at the state court level (most states have their own supreme courts). Even then, the odds are against the case's being presented to the Supreme Court. The Court also shows extreme circumspection in deciding which appealed cases from lower national courts it will review. In either instance, a disappointed litigant must petition the Court, asking it to review the lower court's judgment. If at least four justices find the case worthy of review, the Court will issue a writ of certiorari (Latin for "make more certain") to the lower court, ordering it to send up all records of the case. The so-called "rule of four," allowing a minority of the Supreme Court's nine Justices to accept a petition, is a custom observed since the late nineteenth century, when the Judiciary Act of 1891 authorized the Court to exercise discretion over which appeals it would hear. Granting the writ does not mean that the justices have made a firm decision on the issue, only that at least four of them have determined that the case merits reconsideration.

The Court normally refuses to grant certiorari. Annually it receives some 7500 petitions and denies over 98 percent of them. When a petition is rejected, the lower court's decision (either state or national) stands as it was decided. Thus the Court essentially performs two meaningful functions. First, it determines what cases it will hear (a small minority of the total appealed to it); should an appeal be refused, the immediate effect is for the law to remain what the lower court decided (although that does not mean that the majority of the high Court necessarily agree with the existing decision; it or a similar case, via a more carefully prepared petition, could be appealed again at a later date and once more face the same daunting prospects for doubtful review). Second, it hears and issues judgments on those cases successfully appealed; those decisions announce the precedents that must be followed by all lower courts and by public officials. (The Court, the highest and thus last level of legal appeal in the U.S. government, is the only institution that could overturn its own precedents. This is what happened when, in 1954, Brown v. Board of Education overturned the 58 year-old Plessy v. Ferguson decision.)

The Court's final decisions are made by majority vote, and the Justices almost always announce in detail the reasons for their judgment. These announcements can come in an opinion for the Court, which is the majority opinion, written by a member of the majority; a concurring opinion, again written by a member of the majority, but one who wishes to emphasize discrete views; and dissenting opinions, written by those who voted in the minority, explaining their reasoning.

Appointment and Confirmation of Supreme Court Justices

For much of U.S. history nominations to the Supreme Court were considered important but were not always the cause of sharp partisan squabbles. Two nominations in the late 1980s--President Reagan's choice of Robert Bork (a conservative circuit court judge and former Solicitor General) and President George H. W. Bush's appointment of Clarence Thomas--caused political firestorms, and may have heralded a much more contentious period for Court choices. The Senate rejected the Bork nomination in 1987 and barely approved Thomas following a raucous and protracted hearing in 1991 that featured charges of sexual harassment leveled against him by a former Reagan administration colleague, Anita Hill. Also, in recent years the justices have been closely split (often in 5-4 votes) on highly-charged social issues such as abortion, gay rights, the role of religion in public places, and affirmative action, as well as on issues of federalism and Congressional authority under the Constitution's Commerce Clause. Thus two new justices could plausibly alter significantly the Court's late Twentieth century precedents. Moreover, according to Article III, paragraph 1 of the Constitution, once justices receive confirmation and ascend to the Court, they serve "during good Behaviour," which means that they have life appointments and can be detached from office only by being impeached (charged by a majority vote in the House of Representatives) and removed by 2/3 vote of the Senate (this has never happened in U.S. history). So for many observers and interested parties, the nomination and confirmation process is of the highest importance.

The U.S. Constitution grants the President the singular authority to appoint all federal judges, including those to serve on the Supreme Court (Article II, Section 2, paragraph 2). We expect Presidents to choose jurists who reflect their political beliefs. However, the Senate has the Constitutional duty of "advice and consent" to any nomination (according to the same Constitutional paragraph that grants the appointment power), so Presidents usually avoid picking anyone who might be considered extreme and try to find candidates who have wide appeal in the Senate. Furthermore, because the position of Supreme Court Justice is perceived by Americans as of great consequence, Presidents understandably prefer a large bipartisan majority vote in the Senate, bestowing the impression of broad consensus. (Such is not always the case for lower federal court appointments. The opposition party in the Senate will, on occasion, make use of the filibuster--which can be sustained by a minority of 41 Senators--to deny a vote to seat a President's choice deemed too radical.)

The confirmation hearings in the Senate were opened to the public and to reporters beginning in 1929. Prior to that year, the public knew little about the individuals appointed beyond their pubic records. But this does not mean that partisan politics played a lesser a role in those days compared to today. Of the 146 men and two women nominated to the Court, 28 failed to win the Senate's approval. Only six of these rejections came in the Twentieth century. And most of these rejections were for political reasons. No individual has been turned down solely for lack of professional qualifications. The ones who came closest were George H. Williams, nominated for Chief Justice by President Ulysses S. Grant in 1873, and G. Harrold Carswell, nominated by Richard Nixon in 1970. Both men were criticized as incompetent or mediocre, but other factors (political corruption with Williams and charges of being a segregationist for Carswell) probably played a larger role in their rejection.

There are no specific Constitutional qualifications to be a Supreme Court Justice, but nominees almost always have a legal background and often have served in a lower federal court or a state court. Some appointees have come from political careers (two interesting examples are Chief Justice William Howard Taft, appointed by President Warren Harding less than a decade after Taft had served as President, and Chief Justice Earl Warren, a popular California governor, appointed by President Dwight Eisenhower). Most Chief Justices had been active in politics and in service to the political party of the president who appointed them. Nine were cabinet members. Only two--Morrison R. Waite and Melville W. Fuller--were practicing lawyers in the main prior to their presidential nominations. Nonetheless, in recent years the tendency has been to choose nominees directly from a lower federal or state court. Of the nine justices on the Rehnquist Court before Justice O'Connor's retirement announcement, seven had served on federal courts and two on state courts; three had in addition been law school professors, and three had worked in the Executive branch of the national government. When he was picked by President Bush, John Roberts was serving on the federal Circuit Court of Appeals in the District of Columbia. Ms. Miers was the first nominee in 33 years to have had no experience as a judge (William Rehnquist was the last).

The Senate initiates its "advice and consent" confirmation duties when the Judiciary Committee begins hearings (Judge Roberts' televised confirmation hearings took place during the week starting Monday, September 12). Committee members make opening statements signaling their own views and the nature of questions they will ask. The appointee makes an opening statement as well. Then the Committee members interview the candidate and possibly other experts. Senators may request and then review documents, speeches, and writings of the nominee that clarify his or her judicial philosophy. Special interest groups, both pro and con regarding the appointee, will try to influence the Senate vote, and some are interviewed by the Senate Committee (about 31 interest groups testified before the Judiciary Committee on September 15). The Judiciary Committee then votes and sends the nomination forward to the full Senate, where a simple majority vote confirms or rejects the President's pick.

The first time the Judiciary Committee received testimony for an appointee was in 1925, from Harlan Fisk Stone. Only after World War II did nominees begin to face a bevy of questions from the Committee. Before then, nominations were normally approved rather quickly, with controversial questions settled by Senators in contentious and partisan dealings behind closed doors rather than in the confirmation hearings. But when President Reagan elevated William Rehnquist to the position of Chief Justice in 1986, the Judiciary Committee commenced the modern era's practice of spirited public questioning and debate. Nonetheless, most of today's justices garnered large majority approval from the Senate. For example, Associate Justice Antonin Scalia, perhaps the most conservative, and certainly one of the more controversial justices on today's Court, achieved a confirmation vote of 98-0 in 1986. Five years later, however, Clarence Thomas underwent two separate sets of Judiciary Committee hearings, taking up more than two weeks in total, and then witnessed the narrowest Senate confirmation vote in the Twentieth century--52-48.

The Warren Court (1953-1969)

The Supreme Court, since it must make decisions on issues obviously controversial (otherwise they would not be in court), has always faced public scrutiny and sometimes has been enmeshed in political debate. For several decades after World War II, the Court's review of state laws and actions generated unusual public outcry. This was particularly the case with the Court headed by Earl Warren. When a politician today complains about "judicial activism," or insists on a return to the "original intent" of the Constitution, that politician is typically criticizing the Supreme Court's practices and decisions from the time of the Warren Court.

President Eisenhower appointed the three-term California Governor to be Chief Justice in 1953. He served in that capacity until his retirement in 1969. One reason for the increased activity of the Court during Warren's term was the Court's insistence that the provisions of the Bill of Rights protecting individual rights against the national government also applied to state governments. This position was based on the Court's reading of the Fourteenth Amendment, passed during the Reconstruction period after the Civil War. Let us look at Section 1 of this amendment. There are four important ingredients. First is a definition of U.S. citizenship: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." Second is a constraint on states, protecting individual rights: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States." Third is a statement restricting states with respect to judicial procedure: "nor shall any state deprive any person of life, liberty, or property, without due process of law" (due process means that justice demands a knowable procedure for someone accused of a crime; thus there must be a law before there can be a violation, and there must be a formal accusation, a show of cause for detention, a right to counsel, a formal plea, and a trial). A final curb on states is that they may not "deny to any person within [their] jurisdiction the equal protection of the laws."

This short paragraph of the Constitution provided the fodder from which a judicial revolution of sorts developed during the decades after 1953. The Warren Court came to be concerned about and active in supporting substantive individual rights. The Court was likely controversial at the time because of the subject matter of the cases and the people involved. The Court shielded civil rights and individual rights for ethnic minorities, the economically disadvantaged, and the politically unpopular (atheists and Communists for example). In each instance, however, the Court insisted that it was upholding the deepest meaning of the Constitution.

Here are the more important cases of the Warren Court:

1. Racial Integration of public schools. In 1954, the Court issued its famous decision in Brown v. Board of Education. For the previous 58 years the Court had consistently held that separate public facilities could be considered equal and therefore constitutional. The question before the Court was whether segregation deprived black children of equal educational opportunities and thus of the equal protection of the law mandated by the Fourteenth Amendment. In a unanimous decision, the Court answered yes, holding that separation was inherently unequal, thus reversing the separate-but-equal doctrine of Plessy v. Ferguson (1896).
2. Freedom of Political Expression. In Yates v. United States (1957) the Court overturned the conviction of some second-string Communists on the basis of free speech, no matter how unpopular the issue being expressed. In other cases the Court sustained the right of freedom of expression.
3. Separation of Church and State. In Engel v. Vitale (1962), the Court dealt with a New York State Board of Regents' requirement of an opening-day prayer at all schools in the state. Ten parents had brought suit against the requirement. The Court ruled that this state-mandated prayer violated the First Amendment as applied to the States by the Fourteenth Amendment. Thus New York law breached the constitutional "wall of separation" of church and state. The Court had agreed with Thomas Jefferson's view that the government should neither impede religious freedom nor promote particular religious beliefs. Legal experts discussing church and state matters, frequently use the term the Establishment Clause, referring to the language in Amendment 1 that "Congress shall make no law respecting an establishment of religion."
4. Equal Voting Rights. In Baker v. Carr (1962), the Court ruled that under the equal-protection-of-the-law provisions of the Fourteenth Amendment, state legislative districts must represent people equally on a one-person, one-vote basis. The principle was extended to national congressional districts in Wesberry v. Sanders (1964). Prior to this decision, state legislative districts and national Congressional districts overrepresented thinly populated regions to the disadvantage of cities, ethnic minorities, and the country's heavily populated areas. State legislatures, themselves disproportionately representing a minority of the states' population, had been responsible for redistricting state legislative boundaries. Thus, the Supreme Court's decision notionally challenged, in this instance, "states rights," and applied a nation-wide standard of equality (based on the Fourteenth Amendment). Theoretically, now all members of the House of Representatives represent the same number of constituents, so that each of us is equal to all others in being represented in the House.
5. Rights of the Accused. The key decision in this category was Miranda v. Arizona (1966). The Court said that when individuals are deprived of their freedom (in this case by state officials), they have certain rights consonant with the principle of due process. In reviewing this case, the Court discovered that certain police interrogation methods violated the right against involuntary self-incrimination. The essence of the ruling was that the arresting and investigative unit (the police) must inform individuals of their rights the moment that they have been detained. Under the Miranda formula, you would (a) be told that you may remain silent, (b) be told that anything you say can be held against you, (c) have a right to counsel prior to and during questioning, and (d) if indigent, have a right to have counsel appointed for you. The decision clarified the rights of an accused person (not a convicted criminal).
6. The Right of Privacy. The Court's judgment in Griswold v. Connecticut (1965) was that several Constitutional guarantees--including those in Amendments One (freedom of religion and of speech), Four (protecting persons from "unreasonable searches and seizures") and Fourteen (protecting rights of "due process of law")--implied a right of privacy. Although the word "privacy" does not appear in the Constitution, the Court, by a 7-2 vote, used the Ninth Amendment specifically to establish "a right of privacy older than the Bill of Rights." The express language cited from Amendment Nine was "The enumeration in the Constitution of certain rights, shall not be construed to deny or disparage others retained by the people." The decision struck down a Connecticut law that outlawed private use of contraceptives. The Griswold case became the precedent used later in the more controversial Roe v. Wade decision.

These six categories of Supreme Court decision-making became the focus of legal debate for the remainder of the century and even into the Twenty-first century.

The Burger Court (1969-1986)

During the 1968 Presidential campaign, Richard Nixon had promised that he would appoint "strict constructionists" to the Supreme Court, a veiled criticism of the Warren Court. When Warren resigned, President Nixon appointed Warren Burger, a Republican from Minnesota, who was at the time serving on the federal Appeals Court in the District of Columbia (for obvious reasons, today considered a main stepping stone to the Supreme Court). Burger's tenure would extend from 1969 to his retirement in 1986. As it happened, his Court sustained rather than reversed the decisions of the Warren Court.

In the category of school integration, the Burger Court implemented earlier decisions, even going so far as to condone busing to achieve racial balance. In Bob Jones v. U.S. (1983) it upheld the power of the Internal Revenue Service to deny tax-exempt status to private schools that discriminate on the basis of race (this was a defeat for the Reagan administration, which had tried to gain tax-exempt status from such schools).

In terms of freedom of political expression, the Court maintained the Warren tradition. In one of the most dramatic expressions, the Court let stand California court rulings that it was unconstitutional for black activist Angela Davis to be fired from the UCLA faculty because she was a member of the Communist party. In the apparent conflict between freedom of expression and freedom from "obscenity," the Court took some actions, but the results remained ambiguous. In Roth v. United States (1957) the Warren Court had defined obscenity as material "utterly without redeeming social importance," and declared it unprotected by the Constitution. In 1973, the Burger Court, in Miller v. California, ruled that local communities in effect could set their own standards as to what was or was not tolerable in works dealing with sexual conduct.

The Court continued support for the doctrine of separation of church and state, holding unconstitutional any state laws that directly or indirectly represented government sponsorship of religious activity. An important case in this category was Lemon v. Kurtzman (1971), by which the Burger Court established the "Lemon test" to provide guidelines for legislation dealing with religious issues. The test consists of three tenets designed to uphold the Establishment Clause of the First Amendment: 1) the government's action must have a valid secular intention; 2) the action must avoid either advancing or inhibiting religion; and 3) the action must not cause an "excessive entanglement" of government and religion. If an act violates any of these tenets it would be considered unconstitutional. However, in later decisions the Court altered its position somewhat by condoning public aid to church-related private colleges. The majority of the Court still opposed such aid to elementary and secondary schools but decided that institutions of higher learning spent little time on religious teaching and were rarely influenced by church authorities (This was the 1976 case Roemer v. Maryland Public Works Board, settled by the barest of margins, 5-4).

The Court likewise preserved the "one-person, one-vote" principle for both national and state legislative districts. In Davis v. Bandemer (1986) the Justices ruled that devising legislative districts to give an advantage to one political party was unconstitutional. (In 1981, following the 1980 census, Indiana had redrawn districts that gave the minority party Republicans a majority in the state House of Representatives. The Court, in effect, overturned this redrawing and required the state to create more politically equitable districts.)

Drawing on the right of privacy announced in the Griswold case, Burger's Court ruled in Roe v. Wade (1973) that women had a constitutional right to an abortion in the first three months of pregnancy. The decision struck down antiabortion laws across the country and commenced a heated political debate that continues to this day.

The one category in which the later tribunal altered precedents established by the Warren Court was in the area of due process and the rights of the accused. For example, the Court made more flexible the rules requiring police to obtain court warrants for search and seizure, even deciding that many persons detained on minor charges (such as traffic violations) may be searched for evidence of more serious but unrelated offenses. Three cases in 1984 modified the accused's rights: Nix v. Williams adopted new limits on the controversial exclusionary "rule" (whereby evidence illegally obtained by police officials was excluded in criminal trials). The Court ruled that improperly obtained evidence may be used in trials if its eventual discovery by legal means was "inevitable." In New York v. Quarles the Court determined that police do not need to advise suspects of their constitutional rights when public safety is at stake. Finally, in the so-called "good faith" case of U.S. v. Leon, the Court allowed judges to admit illegally seized evidence in court if police officers believed the search warrants they were using were valid. Still, the basic template of Miranda protections announced in 1966 remained intact.

Regents of the University of California v. Bakke (1978) was a highly publicized Burger Court decision, dealing with "affirmative action," that is policies designed to compensate for past inequities forced on Native Americans, Hispanics, African Americans, and women. Thus the medical school at the University of California at Davis set aside in each year's entering class 16 of 100 places for such disadvantaged candidates. Eighty-four places were determined through open competition among all candidates, and 16 places were reserved for minorities only, with admission to these places determined by a separate committee using lower academic standards. A well-qualified white student, Alan Bakke, denied admission to one of the 84 places, sued on the grounds that less qualified minority applicants had been given priority over him, thus denying him the equal protection of the law assured in the Fourteenth Amendment. The Court handed down a hair-splitting decision that though ruling in Bakke's favor, nevertheless carefully avoided striking down all special admission programs. The Court held that "quotas" were unacceptable but that race might be considered as one factor in a university's admissions policy. That is, the Court ruled for Bakke while approving the principle of affirmative action.

The Rehnquist Court (1986-2005)

With the promotion of William Rehnquist to Chief Justice in 1986, many observers expected recent precedents from the Warren and Burger years to be turned back by the admittedly conservative new leader. But in the course of his 19 years as Chief Justice, the record has been mixed, and the Chief found himself more often than not in the dissent on some of the most divisive issues before the Court.

There was no serious attempt to reverse decisions that had ended racial segregation. (However, in his confirmation hearings Rehnquist had had to deal with a potentially embarrassing 1952 memorandum on the school desegregation cases--including the Brown case--that he wrote when he served as a young law clerk for Associate Justice Robert Jackson. The memorandum, entitled "A Random Thought on the Segregation Cases," insisted that the 1896 Plessy v. Ferguson decision that upheld segregation "was right and should be reaffirmed.")

Also, the issue of equal representation in legislatures seemed now settled, although Rehnquist, and his Court, resisted the crafting of oddly shaped districts specifically for ethnic or racial groups. The Court struck down so-called "racial gerrymandering" of congressional districts as out of line with traditional practices, which often meant the acceptance of "partisan gerrymandering," or of districting in ways that favored political parties. (The cases included Shaw v. Reno in 1993, Miller v. Johnson in 1995, and Bush v. Reno and Shaw v. Hunt in 1996.) Some observers argue that the Court's denial of racial packing while allowing other kinds of gerrymanders contributed to the Democrats loss of the House of Representatives to Republicans since the off-year elections of 1994. Others have noted alternately that packing, and thus isolating, African Americans into single districts, denies spreading Democratic votes into more adjacent districts and gives Republicans an advantage.

Cases regarding freedom of expression continued to come before the Rehnquist Court. In Falwell v. Hustler Magazine (1988) the Court ruled unanimously that the First Amendment protects the most outrageous kinds of free speech. The justices overturned a jury's award of $200,000 to the Reverend Jerry Falwell, head of Moral Majority, for "emotional distress" over an unflattering and clearly offensive parody published in Hustler magazine. In Texas v. Johnson (1989) and U.S. v. Eichman (1990) the Court cited the First Amendment in voiding statutes banning flag desecration. (Rehnquist dissented in the flag cases.)

Cases regarding separation of church and state and the Establishment Clause likewise have appeared frequently before the Court. Indicative of the nuanced possible rulings in this category are two cases announced in June 2005. In McCreary County, Kentucky v. American Civil Liberties Union, a 5-4 decision (with Justice O'Conner in the majority in her capacity as a "swing" voter) the Court ruled that the Ten Commandments could NOT be displayed in a courthouse. On the same day, in another narrow decision the court announced in Thomas Van Orden v. Rick Perry that the Ten Commandments COULD be displayed on the Texas State Capitol grounds.

As to rights of the accused, the Rehnquist Court has essentially upheld the principle of Miranda while narrowing its application. The Chief Justice wrote the opinion for the court in Arizona v. Fulminante (1991) that held that coerced confessions were admissible as evidence in a court and should be considered as "harmless error" if there was sufficient other evidence to determine guilt. Still, in Dickerson v. United States (2000), the Chief Justice, writing for the majority, explained that the Miranda warnings "have become part of our national culture" and must be preserved.

In December 2003 the Court issued two separate decisions on affirmative action practices at the University of Michigan. The cases were Grutter v. Bollinger and Gratz. V. Bollinger. This was the first time since the Bakke case of 1978 that the Court had entertained litigation involving universities' practices in considering race when admitting students. Like the Bakke decision the Court ruled that race can be a factor in admission policy because a broad social value may be achieved from campus diversity. At the same time the Court insisted that race cannot be the overriding factor in making admissions decisions. In the two separate decisions the Court struck down a point system used by the university in undergraduate admissions but upheld the affirmative action admissions policy used by the law school that considered race along with other factors. Sandra Day O'Connor joined the 5-4 majority--again as the "swing" vote--in endorsing the law school practice. By a 6-3 vote the Court voided the undergraduate procedure.

In 2000, by a 5-4 majority, the Court proved "activist" in striking down portions of a Congressional act, The Violence Against Women Act, which allowed victims to sue in federal courts. In U.S. v. Morrison the thin majority significantly limited federal power, ruling that Congress had exceeded its Constitutional "enumerated powers." Article I, section 8, paragraph 3 of the Constitution grants the Congress the authority to "regulate commerce ... among the several states." This Commerce Clause has been used by Congress in the last century to expand extensively the national government's role in our lives. The conservative members of Rehnquist's Court, as indicated in the Morrison case, looked with disfavor upon this expansion, and thus found the Violence Against Women Act as neither "economic" nor "interstate" (that is dealing with commerce among states) and thus an unconstitutional extension of federal power beyond what was allowed by the Constitution. We should parse with some care the meaning of this decision within the larger context of our discussion of "The Court Today." The Warren Court had established precedents for extending protections of national rights to states. The Rehnquist Court sought, in some cases, to resuscitate "states rights" as against national laws or actions.

However, accentuating state autonomy was not the aim in undoubtedly the most controversial decision of the Rehnquist years--the 2000 case Bush v. Gore, by which the Court ended a recount of the presidential voting in Florida and consequently ensured the election of George W. Bush to become President. When the November 7 election ballots were counted nationwide, Vice President Albert Gore had accumulated a significant edge over Bush of about 500,000 votes, but the vote in Florida remained too close to call. Without the Florida electoral vote in the count, Gore had 267 electoral votes and Bush 246. Whichever candidate won in Florida would add that state's 25 electoral votes and thus surpass the 270 necessary to gain a majority in the Electoral College. Because the first count showed Bush ahead in Florida by less than 0.5% of the vote (1,784 votes out of almost 6 million cast) an automatic machine recount took place, narrowing the vote to a margin of but 327, which, under Florida law, allowed Gore to request a hand recount in four counties. A hand count began, and Gore continued to narrow the margin. At this point both sides sought remedy in the courts. Eventually, the Florida State Supreme Court ruled that the recount should continue. The Bush campaign then appealed to the U.S. Supreme Court, which heard the case on December 11 and the next day issued three separate, and complex, opinions. The crucial vote, a narrow 5-4 count--voided the state court directive, ended the recount, and guaranteed Bush's election.

Abortion remains the most sensitive issue facing the Court. In a bitter and narrow 5-4 decision in 1992--Planned Parenthood v. Casey--the Court barely sustained the essentials of the Roe decision of 1973. We should keep in mind three matters regarding this decision. First, O'Connor was the fifth vote for the majority and now she is retiring. Second, the Court has surrounded the right of abortion with several limitations. And third, President Bush is an avowed opponent of the right of abortion and, while President, is the nominator of new Justices.

Rehnquist Court Justices

Given the very close votes explicated in several cases above, it becomes obvious that O'Connor's retirement and Rehnquist's death, to reiterate, leave the Court in 2005 poised to move in new, but possibly uncertain directions. Although he occasionally joined with his more "liberal" colleagues (as in the Dickerson case cited above), Rehnquist usually fell on the "conservative" side of issues and was joined on that side almost always by Associate Justices Antonin Scalia and Clarence Thomas. Alternately, Justices John Paul Stevens, David Hackett Souter, Ruth Bader Ginsberg, and Stephen G. Breyer could usually be considered "liberals." That left Anthony M. Kennedy and O'Connor as the "swing" voters, who sometimes joined the conservatives, sometimes the liberals.

This voting breakdown was not obvious when each of the Rehnquist Court justices (as of 2005) was first placed on the Court. Of course, for the most part Rehnquist proved to be the judge his appointers had anticipated, although he did not radically effect a shift in Court precedents. Born in Milwaukee, Wisconsin in 1924, Rehnquist had served in the Army Air Force, received a B.A, M.A., and LL.B. from Stanford and an M.A. from Harvard. As we saw above, he was a law clerk for Associate Justice Robert Jackson in the early 1950s, was then active in Republican politics in Arizona, and worked in President Nixon's Justice Department before his appointment to the high court.

O'Connor, the first woman to be placed on the Court, was born in El Paso, Texas in 1930 and, like Rehnquist, earned her B.A. and LL.B. from Stanford. She moved to Arizona where she became Assistant Attorney General, and then an elected Republican member of the State Senate. For two years before President Reagan elevated her to the Supreme Court she sat on the Arizona State Court of Appeals. Appointed by an acknowledged "conservative" President, she became, as we have seen, the key "swing" voter between the Court's liberals and conservatives.

John Paul Stevens, born in Chicago in 1920, gained his undergraduate degree from the University of Chicago and his J.D. from Northwestern University. He served in the Navy during World War II, was also a law clerk in the Supreme Court, was an Eisenhower employee in that Republican President's Justice Department, was appointed by President Nixon to a federal Appeals Court, then elevated to the Supreme Court by Republican President Gerald Ford in 1975. Stevens, considered a moderate conservative when first entering the Court, has become a fairly consistent liberal.

Antonin Scalia, born in Trenton, New Jersey in 1936, from the beginning has maintained his conservative credentials. A Georgetown and University of Fribourg, Switzerland graduate, with an LL.B. from Harvard, he became a law professor at the University of Virginia in the late 1960s and then taught at the University of Chicago Law School and Georgetown into the 1980s. He served in the Nixon and Ford administrations, received appointment from President Reagan to the federal Appeals Court in the District of Columbia, and then to the high court in 1986.

Anthony M. Kennedy was born in Sacramento, California in 1936. He studied at Stanford, the London School of Economics, and earned his LL.B. from Harvard. He practiced law in California, served on several legal-oriented committees, and was appointed by President Ford to the Ninth Circuit Court of Appeals, where he served until President Reagan placed him on the Supreme Court in 1988. Like O'Connor, Kennedy is sometimes considered a "swing" voter on the most contentious cases.

David Hackett Souter has been, perhaps, the most surprising justice on the current Court. Born in Melrose, Massachusetts in 1939, Souter earned his undergraduate degree from Harvard, was a Rhodes Scholar at Oxford, gained an A.B in Jurisprudence from Oxford and an LL.B. from Harvard. He practiced law in New Hampshire, became the state's Attorney General and then a member of its Supreme Court, followed by a brief tenure on the federal First Circuit Appeals Court. The first President Bush appointed him to the Supreme Court in 1990. In his confirmation hearings, alone and with no notes for reference, he displayed a dazzling knowledge of the law and an unusual sense of humor. Although seen as a "Republican" appointee, he has turned out to be one of the more thoughtful "liberals" on the Court.

We have met Clarence Thomas in commentary above. He became the second African American (after Thurgood Marshall) to serve on the Court. Thomas was born near Savannah, Georgia in 1948. He studied at Conception Seminar and then received his undergraduate degree from Holy Cross and his J.D. from Yale. He practiced law for a while in Missouri and then became Assistant Attorney General there. President Reagan appointed him to a post in the Department of Education and made him Chair of the Equal Employment Opportunity Commission. President George H. W. Bush placed him on the federal Appeals Court in the District of Columbia and then on the Supreme Court in 1991. Thomas has voted consistently conservative during his years on the Court.

Ruth Bader Ginsberg became the second woman to sit on the Court. Born in Brooklyn in 1933, she studied at Cornell, Harvard, and Columbia, from where she earned her LL.B. She taught law at Rutgers and Columbia, became a fellow at the Center for Advanced Study in the Behavioral Sciences at Stanford, and initiated the Women's Rights Project of the American Civil Liberties Union. President Jimmy Carter appointed her to the Appeals Court for the District of Columbia, and Clinton chose her as his first nominee to the high Court in 1993. She is another consistent liberal on the Court.

Stephen G. Breyer, President Clinton's second and last appointee, was born in San Francisco in 1938. He has an A.B. from Stanford, a B.A. from Oxford, and an LL.B. from Harvard. He was an Assistant Special Prosecutor of the Watergate Prosecution and Special Counsel for the Senate Judiciary Committee during the mid 1970s. He also taught government at the Kennedy School at Harvard, and law at Harvard, in Sydney, Australia, and at the University of Rome. From his position on the First Circuit Court of Appeals he was promoted in 1994 to the Supreme Court.

John Glover Roberts, Jr.

Roberts became the 17th Chief Justice and the youngest since John Adams chose 45-year-old John Marshall in 1801. There is every reason to think that Roberts will serve as long as Marshall's 34 years. While it is difficult to think that anyone could approach Marshall's impact, Roberts may have an opportunity to leave a novel mark on American jurisprudence. We need to know something about this man.

Born in Buffalo, New York in 1955, Roberts, while a small child, moved with his family to Long Beach, Indiana, nestled on the shore of Lake Michigan not far from Chicago. At 18, he graduated first in his class of about two dozen from a boys' Catholic boarding School in rural Indiana. He had studied languages (Latin and French) and participated in sports and other extra-curricular activities. He earned his B.A. (summa cum laude) and JD at Harvard, where he was editor of the prestigious Harvard Law Review.

He was a law clerk first at the federal Court of Appeals, Second District in New York and then for William Rehnquist when the latter was an Associate Justice. He served as an aide to President Reagan's Attorney General William French Smith from 1981-1982 and then as an aide to White House Counsel Fred Fielding until 1986. Subsequently, Roberts became deputy Solicitor General in the first Bush Presidency from 1989 to 1993. He represented the government before the Supreme Court in 39 cases, winning 25. Also, he represented 19 states in the landmark and ongoing case U.S. v. Microsoft. When the first Bush left office in 1993, Roberts returned to the practice of law with. Hogan and Hartson, one of the premier law firms in Washington, D.C., in which capacity he appeared frequently before the Supreme Court but also performed some interesting "pro bono" (donated for the "public good") work. He also advised Governor Jeb Bush during the legal maneuverings over the disputed 2000 presidential election recount dispute in Florida. President George W. Bush appointed him to the federal Appeals Court in the District of Columbia in 2003, on July 19, 2005 to Sandra Day O'Connor's seat, and then on September 5, 2005 to replace the deceased Rehnquist. Twenty-five days later the Senate confirmed his appointment as Chief Justice and he began his service on October 3. At 50, Roberts had been on a very fast track.

Early news accounts reported that Roberts had been a member of the "Federalist Society," an association of conservative lawyers who promote the idea of "original intent." However, according to White House aides he does not recall ever being a member, although records listed him in the group's leadership directory in the late 1990s. He married Jane Marie Sullivan in 1996 and the couple adopted two infants in 2000. Jane Roberts is an active attorney who has served as vice-president of "Feminists for Life" a pro-life (anti-abortion) organization that also opposes the death penalty. The Robertses are practicing Catholics.

Roberts' Judicial Views

The Senate Judiciary Committee was able to retrieve all documents relative to Judge Roberts' service in the Reagan Administration and had public evidence of his work as a private attorney and an Appeals Court judge. However, the Bush Administration refused to reveal any of Roberts' documents from his service in the first Bush Administration. Democrats in the Senate pressed the Administration to release all relevant documents for review by the Senate but the White House successfully resisted the pressure. The documents that were disclosed revealed a person with a sharp, clearly "conservative," approach to jurisprudence.

The 18 members of the Senate Judiciary Committee were able to use information from Roberts' service in the Reagan Administration and his tenure on the Appeals Court as they fashioned questions for the nominee.

With reference to what is probably the most divisive issue that will face the Court Roberts will head--abortion--his studied remarks during his hearing on Tuesday, September 13, are of interest. Answering several questions, Roberts avowed his belief that there was a "right of privacy" within the Constitution. When the Chair of the Committee--Republican Arlen Specter--quizzed him about the Roe case of 1973 and Planned Parenthood v. Casey in 1992, he cited the principle of stare decisis (Latin for to stand by decided matters), saying Roe was "settled as a precedent of the Court." As to the 1992 Casey case, he elaborated further: "That decision, that application of the principles of stare decisis is, of course, itself a precedent that would be entitled to respect under those principles."

As to religious freedom and the Establishment Clause in Amendment 1, Roberts addressed the following explication to Senator Sessions on September 14: "...the principle that the framers intended [was that] the rights of full citizenship...be available to all citizens, without regard to their religious belief or lack of religious belief. That, I think, is the underlying principle, and hopefully the court's precedents over the years will continue to give life to that ideal."

Regarding the Fourteenth Amendment, as it had been applied to the Brown case by the Warren Court, to Senator Kohl on September 13, Roberts said: "The research into the original understanding of the drafters of the Fourteenth Amendment has expanded and changed quite a bit. And I think a very good case can be made about their views. But more importantly, the issue was the institution of public education wasn't as established at the time as it was in 1954 at the time of the crafting of the amendment. And the framers [of the Fourteenth Amendment] spoke in broad language. And whether they specifically addressed the question of public education or not isn't the limitation. Their intent was not limited to the particular problem. They chose broad language and they should be held to their word. And I think it is perfectly consistent with an original understanding to argue and to conclude that their original understanding meant that segregated schools were unconstitutional--not just in 1954, but at the time they enacted the amendment. So the court was not changing the strike zone. That wasn't the way [Thurgood] Marshall presented his argument. It wasn't necessary for them to say, "We're changing the rules of the game." What was necessary for them to do--and what Marshall was urging them to do--was to get it right when they had gotten it wrong in Plessy.

This seemed an endorsement of the essential approach of the Warren Court (using the Fourteenth Amendment) to jurisprudence.

Harriet Ellan Miers

Ms. Miers was the first female president of the Texas State Bar, a position she assumed in 1992. She was counsel for Mr. Bush's gubernatorial campaign during 1993-1994, and, at his earnest request, agreed to serve as Mr. Bush's personal attorney. She joined the new Bush Presidency in 2001 as a staff secretary in the White House, was promoted to Deputy Chief of Staff in 2003, and, upon the elevation of Alberto Gonzales to Attorney General, succeeded Gonzales in November 2004 as White House Counsel, that is, the chief legal advisor in the Office of the President. On October 3, 2005, the opening day of the new Roberts Court, Mr. Bush presented her as his choice to take the Supreme Court seat being vacated by the retirement of Sandra Day O'Connor. Within a week of Miers' nomination, opposition began to mount from the President's conservative base. Columnist Charles Krauthammer and Weekly Standard editor William Kristol called on Bush to withdraw the nomination, and conservative writer George Will urged the Senate to deny confirmation. Unease was palpable among Republican politicians, who feared that Miers might be a "stealth" liberal as they thought David Souter had become. Some criticized the nomination as representing a disturbing "cronyism" in Presidential appointments (Miers was a close and admiring friend of the President), and still others worried that Miers had never been a judge. (Yet fully 41 people who have served on the Court had no previous judicial experience. Among those 41 were such prominent Justices as John Marshall, Louis Brandeis, Felix Frankfurter, Robert Jackson, Earl Warren, and William Rehnquist.) The anxiety surrounding the Miers nomination seemed to reflect the nation's deep partisan divisions on major social and legal issues. As more voices joined the opposition, Ms. Miers decided to withdraw her nomination on October 27. She remained in her position as White House Counsel.

Samuel A. Alito, Jr.

On October 31, 2005, Judge Samuel Alito became President Bush's choice for the nomination abandoned by Harriet Miers.

Alito was born on April 1, 1950 in an Italian neighborhood in Trenton, New Jersey. His parents moved to an ethnically mixed suburb, Hamilton Township, where his mother Rose, an elementary school principal, and his father, Samuel Sr., raised Sam and his sister Rosemary (now a prominent New Jersey attorney). Alito's mother, a 91-year-old widow, still lived in the house in Hamilton when her son began his hearings before the Judiciary Committee. Alito pére, an Italian immigrant, taught high school history and then became the first director of the state's Office of Legislative Services. Sam and his sister attended the public school--East Steinert High--and both participated in the school's debate team. Sam was considered the brainiest student in his class; he was class president his senior year, an active participant in the school band (playing trumpet), a member of the track team, and valedictorian. He also developed an ardor for baseball and became a life-long Philadelphia Phillies fan.

In 1968, Alito entered Princeton, where he studied in the politics program of the University's Woodrow Wilson School. He joined the debate team and the Reserve Officers Training Corps (which was phased out during his student years at Princeton) and wrote a senior thesis on Italy's Constitutional Court. Princeton's yearbook predicted that he would one day "warm a seat on the Supreme Court." At graduation he was commissioned as an Army second lieutenant, but went directly to law school at Yale. He served on active duty briefly in 1975 and remained in the Army Reserve until 1980, when he was honorably discharged as a captain.

At Yale, Alito was considered one of the brightest students of his generation. He served as editor on the Yale Law Journal and earned his Juris Doctorate in 1975. After graduating from Yale, he clerked for Judge Leonard I. Garth on the Third Circuit Appellate Court, then served as assistant attorney in the Newark branch of the appellate division of the U.S. attorney's office. In 1981 he entered the Justice Department in the new Ronald Reagan Administration where he was first an assistant to the Solicitor General and then Deputy Assistant Attorney General. From 1987 to 1990 he was U.S. Attorney in New Jersey, appointed to the post by President Reagan. While in this latter position, Alito met the librarian in the U.S. Attorney's Office--Martha-Ann Bomgardner--who became his wife and the mother of their two children.

In 1990 the first President Bush appointed Alito to the Third Circuit U.S Appeals Court in Philadelphia, where he was serving when he received the nomination to the Supreme Court.

The Alito family attends mass at Our Lady of the Blessed Sacrament in Roseland, New Jersey, where Mrs. Alito teaches religious education classes. By joining co-religionists Roberts, Scalia, Kennedy, and Thomas on the bench, Alito becomes the fifth Catholic on the high Court. Such composition is striking, since as late as 1988 there had never been more than two Catholics on the Supreme Court at the same time. Five Justices, of course, represent a majority. Nonetheless it is of note that William J. Brennan, a Catholic member of the Court appointed by Republican President Eisenhower, voted with the majority in the Roe v. Wade decision of 1973.

Unlike both John Roberts (who had but a brief tenure on an appeals court before his nomination) and Harriet Miers (who lacked judicial experience), Judge Alito--having served for 15 years on the Court of Appeals for the Third Circuit--has amassed an extensive judicial paper trail. His decisions have been characterized by technical and learned analysis, he rarely uses jargon or overtly presses an ideological stance, and he appears to defer to precedent. Although admired by both conservative and liberal colleagues, Alito, a member of the Federalist Society, strikes most observers as solidly conservative.

His position regarding the right to an abortion has attracted considerable attention. In 1985, while working for the Reagan Administration, he recommended to the Solicitor General that the administration take advantage of a case before the Supreme Court to "make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled." Alito admitted that the Court was not at the time about to override Roe, but, having taken cases regarding abortion, he opined that the Court might be signaling "a positive sign." "What can be made of this opportunity," he continued in his memorandum of 1985, "to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?" In 1991, early in his tenure on the Third Circuit Court of Appeals, Alito dissented in a case involving a Pennsylvania law requiring a woman to notify her husband before getting an abortion. The majority on the Appeals Court struck down the notification requirement; Alito would have sustained it. In a bitter 5-4 decision (Planned Parenthood v. Casey, 1992), the Supreme Court upheld the lower court judgment, thus discounting Alito's argument. (Justice O'Connor voted with the close majority, which had made use of her earlier announced "test" for whether a regulation placed an "undue burden" on a woman seeking to exercise her constitutional right to terminate a pregnancy.) In 1995, sitting on a three-judge panel, Alito, in an apparent change of tack, cast a tie-breaking vote to do away with regulations on Medicaid-funded abortions for victims of rape or incest. Finally, in 2000, he joined in a ruling that ended a New Jersey ban on late-term abortions. In early December, 2005, Alito publicly stated that his "personal views on a woman' s right to choose" would not affect his judicial decisions as a Supreme Court Justice.

While abortion is a sensitive and hotly debated issue, Alito has compiled a long record on other legal subjects as well.

At times he has ruled to restrain the reach of Congressional authority and uphold the rights of states. In 2000 he joined an Appeals Court majority in determining that states were immune from suits under the Family and Medical Leave Act. Later, the Supreme Court overruled Alito's position in the case Nevada Department of Human Resources v. Hibbs (2003). In 1996 he issued a dissent, arguing that Congress could not regulate the possession of machine guns under the Commerce Clause of the Constitution.

Some other of Alito's opinions that surfaced in the news by the end of December, 2005, included: 1) a decision in 1999 endorsing the right of Jersey City to mount a religious holiday display, reasoning that the display did not violate the Establishment Clause of the First Amendment; 2) upholding the First Amendment rights of a student newspaper to run ads for alcohol; and 3) ruling in 2004 against a death row inmate who had charged his lawyers with ineffective representation (the Supreme Court later reversed the ruling, finding that the man's lawyers had failed to present necessary evidence at the jury trial). Also, while working for the Reagan Administration in the mid 1980s, Alito--in a 1985 request for promotion--criticized the Warren Court's "one-person, one-vote" reapportionment decisions, and, on other occasions, evinced resistance to the use of ethnic and racial quotas as remedies for historic discrimination practices, and supported immunity for the Attorney General from lawsuits over illegal wiretaps (although he noted in a 1984 memorandum that "Absolute immunity arguments are difficult to pursue successfully," given current law, including the 1978 Foreign Surveillance Intelligence Act).

In a lengthy response to questions forwarded from the Judiciary Committee in December, 2005, Judge Alito underscored his belief that the judiciary had to "ensure that they respect the limits of their authority," particularly with respect to the other branches of government. "Judges," he explained, "must be appropriately modest in their estimation of their own abilities; they must respect the judgments reached by predecessors ... without shirking their duty to say what the law is and to carry out their proper role with energy and independence."

Pepperdine Law School professor Douglas W. Kmiec, who was a colleague in the Reagan Justice Department, has said that Alito "is a conservative conservative. He would never do something that when it came up you'd say, 'Whoa, where did you get that?'"

On the last day of January, 2006, the U. S. Senate, in a close partisan vote of 58-42, confirmed Samuel Alito. By spring 2006, Justices Roberts and Alito had joined a Court that was obviously different from the Court of the recent past, but nonetheless remained difficult for analysts to button down. That is -- whatever the fears of liberals and the hopes of conservatives -- whether President Bush had taken advantage of a historic opportunity to move the Court firmly to the ideological right was not clear. What did seem certain was that news about the Supreme Court would continue to surface on the front pages of newspapers, in televised news coverage, and all over the Internet. In a multifarious country where political and community leaders, as well as anxious citizens, voice passionate and often contrary views on crucial social, political, and legal issues, The Court Today continues as relevant to our lives as it has ever been.

Click Here for a lesson on Choosing Supreme Court Justices in 2005.

Selected Bibliography

Belsky, Martin H., ed. The Rehnquist Court: A Retrospective. New York: Oxford University Press, 2002.

Breyer, Stephen. Active Liberty: Interpreting Our Democratic Constitution. New York: Knopf, 2005.

Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. 2nd ed. New York: Oxford University Press, 2005.

Malcolm, Janet. "The Art of Testifying: Annals of the Senate." The New Yorker (March 13, 2006): 71-79.

Maltese, John Anthony. The Selling of Supreme Court Nominees. Baltimore: Johns Hopkins University Press, 1995.

Maltz, Earl M., ed. Rehnquist Justice: Understanding the Court Dynamic. Lawrence: University Press of Kansas, 2003.

McCaffrey, Paul, and Lynn M. Messina, eds. The United States Supreme Court. New York: H. W. Wilson, 2005.

Perry, Barbara A. A "Representative" Supreme Court? The Impact of Race, Religion, and Gender on Appointments. Westport: Greenwood Press, 1991.

Schwartz, Bernard, ed. The Burger Court: Counter-Revolution or Confirmation? New York: Oxford University Press, 1998.

Schwartz, Bernard A., ed. The Warren Court: A Retrospective. New York: Oxford University Press, 1996.

Tushnet, Mark. A Court Divided: The Rehnquist Court and the Future of Constitutional Law. New York: W. W. Norton, 2005.

Vieira, Norman, and Leonard Gross. Supreme Court Appointments: Judge Bork and the Politicization of Senate Confirmations. Carbondale: Southern Illinois University Press, 1998.

Yarbrough, Tinsley E. The Rehnquist Court and the Constitution. New York: Oxford University Press, 2000.

Relevant Web Links

National Archives releases on Judge Samuel Alito:
http://www.archives.gov/news/samuel-alito/

New York Times link on recent news regarding the Supreme Court, including transcripts from John Roberts' hearing before the Judiciary Committee:
http://www.nytimes.com/pages/politics/politicsspecial1/index.html

New York Times interactive site showing historical changes in the Supreme Court, including coverage of recent developments:
http://www.nytimes.com/packages/html/politics/2005_SCOTUSNOMINATION_GRAPHIC/index_LEADERS.html

New York Times coverage of the Alito nomination:
http://topics.nytimes.com/top/reference/timestopics/people/a/samuel_a_alito_jr/index.html?inline=nyt-per

Public writings of Harriet Miers:
http://library.law.smu.edu/miers

John Roberts' legal opinions while working for the Reagan administration:
http://www.reagan.utexas.edu/roberts

Official Supreme Court web site:
http://www.supremecourtus.gov

Washington Post coverage of the Alito nomination:
http://www.supremecourtus.gov

Yahoo Complete Coverage on current news about the Supreme Court:
http://fullcoverage.yahoo.com/fc/US/Supreme_Court

Click Here for a lesson on Choosing Supreme Court Justices in 2005.

Questions to Ponder

1. Is the system of nomination and confirmation of Supreme Court Justices the best way to ensure responsible Justices? What other methods would you recommend?
2. Should Senate interviewers insist that a nominee indicate exactly how she or he would vote on specific court cases? Or should the Senators expect only a general philosophical answer to their questions?
3. Can "conservative" Justices be as "activist" as "liberal" Justices?
4. Thinking about the Warren, Berger, and Rehnquist Courts, did they abide by the Constitution's "original intent" or "make law"? Explain carefully.
5. Describe your idea of a perfect Supreme Court Justice.