Overview: Judicial review makes Supreme Court a partner in government

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WASHINGTON - French political philosopher Alexis de Tocqueville once commented on the uniqueness of the U.S. Supreme Court when compared to the European systems of jurisprudence in effect during the mid-19th century.

"The representative system of government has been adopted in several states of Europe," de Tocqueville observed. "But I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans ? A more imposing judicial power was never constituted by any people."

When America's founders wrote the Constitution and laid out the three-branch structure of the United States government, they surely devised a revolutionary role for the new nation's highest court. Advocated by James Madison and Alexander Hamilton among others, the concept of judicial review - the power of the court to rule on the Constitutionality of executive and legislative acts and overturn them if necessary - had not been tried elsewhere.

Indeed, the Supreme Court is a uniquely American institution; to this day, few courts anywhere else in the world have the same authority of constitutional interpretation. Fewer still have wielded a comparable level of influence over time as has the U.S. Supreme Court.

Designed to prevent laws from straying beyond the bounds of constitutionality, judicial review charges the Court with protecting the rights of individual citizens while continually interpreting the Constitution in the face of new and evolving realities.

Critics occasionally find and decry flaws in American government - perfectly legal practices under our Constitution. But with the American "experiment" in democratic government still going strong after well over 200 years in force (the U.S Constitution is the only such document to remain in effect for so long) the founding fathers appear to have generally gotten things right. The fact that nations around the world, including a number of American Indian governments, have adopted similar constitutions helps confirm this belief.

Justices

Justices of the Supreme Court are appointed by the President and approved by the Senate. The Senate also has the power to remove a justice for misconduct. The original Court, appointed by President George Washington, had six justices; since 1869, it has had a chief and eight associates. The current Chief Justice, William H. Rehnquist has led the Court since 1986.

To protect justices from partisan politics and ensure that the judiciary remains independent, the Constitution stipulates that justices serve during good behavior, which all but means a life term. The Constitution also states that justices' salaries may not be diminished during their term of office as another means of ensuring their independence.

Since the formation of the Court in 1790, there have been only 16 chief justices and 97 associate justices for a total of 108. (Five chiefs also served as associates.) Over the years, justices have served for an average of 15 years, with a new justice arriving on the bench every 22 months, on the average.

History

The Supreme Court of the United States was created by authority of the Judiciary Act of Sept. 24, 1789 and was organized the following February. Because the Constitution defines neither the Court's exact powers nor the judicial branch's organization, it was left to Congress and to the Justices, via their decisions, to develop both the federal judiciary and a body of case law. After a year or so of organizational proceedings, the Court heard its first cases in 1792.

The Justice who has so far had the longest tenure on the bench is William O. Douglas who, when he retired in November 1975, had served on the bench for 36 years and six months.

The nine Supreme Court Justices are seated on the bench by seniority: the Chief Justice occupies the center chair, while the senior Associate Justice sits to the right, the second senior to the left, alternating to the right and left by seniority.

A venerable Court tradition is the "conference handshake." Instituted by Chief Justice Melville W. Fuller in the late 1800s, the justices shake hands with each of their eight colleagues as they assemble prior to going on the bench each day or before private decision-making conferences. The handshakes are meant as a reminder that differences of opinion cannot trump the Court's unity of purpose.

Jurisdiction and term

Under Article III, Section 2 of the Constitution, the Supreme Court has original jurisdiction over cases involving ambassadors, public ministers and consuls, as well as any case in which a state is a party. This means that such cases will not be tried in a lower court. In all other cases, the Court has appellate jurisdiction, meaning that lower court rulings may be appealed up the chain until they reach the Supreme Court, which is of course the final authority. The Court also on occasion promulgates procedural rules for the nation's lower courts.

By law, the Court's term begins each year on the first Monday in October and continues until the first Monday in October of the following calendar year, although sessions generally continue through June. A term is comprised of alternating two-week periods called sittings, during which the justices hear cases and deliver opinions, and recesses, during which they consider the business before the Court and write opinions.

As most cases involve the review of another court's decision, there are neither jury nor witnesses present. In addition to hearing oral arguments (in most instances each side gets 30 minutes) justices rely upon records of prior proceedings as well as printed briefs detailing each side's arguments.

During intervening recesses, justices write their opinions, which might be revised a dozen times before publication. Every week the Court receives over 130 petitions seeking review of federal and state judgments of state and federal courts; these are evaluated to determine which cases will be granted full review.

When the Court is sitting, public sessions are held Monday through Wednesday from 10 a.m. - 3 p.m., with a one-hour lunch break at noon. Each Friday during and immediately preceding argument weeks, justices meet to discuss argued cases and decide which petitions to review.

Besides hearing oral arguments, the Court has other business to transact. On Monday mornings, the Court admits new members to its bar and issues its order list, a report listing the acceptance and rejection of cases and other court actions. Opinions are usually released on Tuesdays and Wednesdays. The Court follows this schedule throughout each term until all submitted cases have been heard and decided. During May and June, the Court meets to announce orders and opinions; it recesses at the end of June.

Caseload

During the course of an average term, according the Court's Web site, some 7,000 petitions are filed with the Supreme Court; another 1,200 applications of various types, which can be acted upon by an individual justice, are also filed each year. During each two-week sitting, the justices may hear up to two dozen cases.

The Court's caseload has spiraled rapidly in recent decades. In 1945, a mere 1,460 were filed; by 1960, that number had grown to only 2,313. Plenary review, which features attorneys' oral arguments, is granted in about 100 cases per term, while formal written opinions are delivered in some 80 to 90 cases. Another 50 or 60 other cases are disposed of without review. The publication of the Court's written opinions, including concurrence and dissent, and orders for a single term can total almost 5,000 pages.

Some of the information presented in this article was obtained from the Court's Web site, www.supremecourtus.gov/.