The Elected Branches and the Federal Courts

  • The federal courts operate within a system of checks and balances, and the federal judiciary is a point of significant interest for both the President and Congress because of the vast powers the courts have acquired.

  • Judicial Review (Federal Law): Established in Marbury v. Madison (1803), the courts acquired the power to review and potentially nullify federal laws.

  • Judicial Review (State Law): In Fletcher v. Peck (1810), the courts assumed the authority to declare state laws unconstitutional.

  • Federalist 78: Alexander Hamilton famously observed in Federalist 78 that the judiciary was "the least dangerous branch." However, modern concerns often stem from the fact that judges are unelected and hold life-tenured positions.

  • Structure of the Federal Judiciary:
      - The Supreme Court: Consists of 9 justices. It possesses both appellate and original jurisdiction.
      - Circuit Courts: There are 13 regional Circuit Courts, which hold only appellate jurisdiction.
      - District Courts: There are 90 District Courts, which serve as the trial courts of the federal system.

Executive Controls: The Presidential Appointment Power

  • The primary mechanism by which the President influences the courts is through the appointment process. This is a critical power as no individual can serve on a federal court without being nominated by the President.

  • Uncertainty of Outcome: The process is described as "not foolproof." President Dwight D. Eisenhower famously remarked that his appointments of Chief Justice (CJ) Earl Warren and Justice William Brennan were the "biggest mistakes he ever made."

  • Senate Confirmation: The President must secure the approval of the Senate for every nominee, which is often a difficult undertaking.

Legislative Constraints: Majority Party Blocking Mechanisms

  • The majority party in the Senate can effectively block a nominee by refusing to hold hearings.

  • Historical Precedents and Breaks:
      - Prior to 2016, no Supreme Court nominee in recent history had been entirely ignored by the Senate Judiciary Committee.
      - In 2005, Harriet Miers was nominated but was withdrawn before Senate consideration.
      - Antonin Scalia (2016) and Merrick Garland: After the death of Justice Antonin Scalia in 2016, President Barack Obama nominated Merrick Garland. The Republican majority in the Senate opted not to move ahead with hearings in the Judiciary Committee. They argued that because it was too close to an election year, the choice of a nominee should wait for the next president.
      - Amy Coney Barrett (2020): Conversely, when Amy Coney Barrett was nominated in September 2020 (also close to an election), the Republican majority in the Senate proceeded with the confirmation.

Minority Party Constraints: The Filibuster and Rule Changes

  • The minority party formerly used the filibuster to block nominees, leading to major procedural changes in the Senate.

  • Harry Reid and the "Nuclear Option": In November 2013, Democratic Majority Leader Harry Reid established the precedent of ruling filibusters against lower court judges and executive branch appointments as out of order. This rule change did not initially apply to Supreme Court nominees.

  • Abe Fortas (1968): Historically, Justice Abe Fortas was filibustered by conservatives in 1968 when he was nominated for the position of Chief Justice (he was already an associate justice at the time).

  • Mitch McConnell and Supreme Court Nominees: In March 2017, following a Democratic filibuster of nominee Neil Gorsuch, Republican Majority Leader Mitch McConnell established a new precedent ruling filibusters against Supreme Court nominees (and consequently all presidential nominations) as out of order.

The Shift Toward Partisan Rancor: The Robert Bork Factor

  • The current era of partisan intensity and procedural rule changes is largely attributed to the 1987 nomination of Robert Bork by President Ronald Reagan.

  • Robert Bork's Track Record: Bork possessed a strong conservative record. This led to an intense mobilization of interest groups from both the right and the left who sought to influence the Senate.

  • Outcome of Bork Nomination: Bork was defeated with a vote of 58-42. Since this event, interest groups on both sides of the political spectrum have worked aggressively to influence the confirmation process, particularly for the Supreme Court.

Contentious Modern Confirmations and Ethical Scrutiny

  • Several high-profile confirmation processes have demonstrated the increased polarization and intensity of the Senate's role:
      - Clarence Thomas (1991): Nominated to replace Thurgood Marshall (filling what was considered the "African-American seat"). The process was marked by accusations of sexual harassment by Anita Hill, leading to charged Judiciary Committee hearings. He was confirmed by a narrow margin of 52-48.
      - Brett Kavanaugh (2018): Nominated in the fall of 2018. He faced accusations of sexual assault by Christine Blasey Ford regarding events while they were teenagers. The hearing was highly partisan and tense; he was confirmed 50-48.

  • Ethical Challenges and Scandals:
      - Presidents must ensure nominees are not ethically compromised.
      - Clement Haynesworth (1969): Nominated by Richard Nixon, but it was discovered he heard cases involving companies in which he held stock.
      - Douglas Ginsburg (1987): Nominated by Reagan after Bork's defeat, but his appointment was undone by the discovery that he had smoked marijuana while in college.

Informal Constraints and the Concept of Judicial "Balance"

  • Senatorial Courtesy: An informal practice where a prospective judge's two home-state senators are given effective veto rights over a nomination for a District or Circuit court before it is formally announced.

  • Court Balance: There is a historical and modern emphasis on maintaining a specific "balance" on the Court.
      - 19th Century: Balance was primarily geographical (seats dedicated to Southerners, New Englanders, Westerners).
      - Modern Era: Balance is now defined largely by gender and race.
      - Thurgood Marshall: The first African-American justice. When he retired in 1991, George H.W. Bush nominated Clarence Thomas to replace him.
      - Sandra Day O’Connor: The first woman on the Court. George W. Bush initially named Harriet Miers to replace her.
      - Ruth Bader Ginsburg: Amy Coney Barrett was named as her replacement by Donald Trump.
      - Ketanji Brown Jackson: Joe Biden announced during his campaign that he would appoint a Black woman; he subsequently nominated Jackson.

Current Supreme Court Composition and Ideology

  • The current Court is considered relatively diverse, containing three women and one Hispanic justice.

  • Ideological Alignment: The Court is generally split 6-3 in favor of conservatives.
      - Conservative / On the Right: Chief Justice John Roberts, Samuel Alito, Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
      - Liberal / On the Left: Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
      - Nuance: Chief Justice John Roberts is viewed by some as more of a centrist.

  • Current Justices (As of April 2026):
      - John Roberts (CJ): Appointed 2005 by W. Bush, Age 71.
      - Clarence Thomas: Appointed 1991 by H.W. Bush, Age 77.
      - Samuel Alito: Appointed 2006 by W. Bush, Age 75.
      - Sonia Sotomayor: Appointed 2009 by Obama, Age 71.
      - Elena Kagan: Appointed 2010 by Obama, Age 65.
      - Neil Gorsuch: Appointed 2017 by Trump, Age 58.
      - Brett Kavanaugh: Appointed 2018 by Trump, Age 61.
      - Amy Coney Barrett: Appointed 2020 by Trump, Age 54.
      - Ketanji Brown Jackson: Appointed 2022 by Biden, Age 55.

Legislative Controls Beyond Confirmation

  • 1. Impeachment: Judges, like executive officials, can be impeached.
      - Only one Supreme Court justice has ever been impeached: Samuel Chase in 1804. He was acquitted by the Senate, as the effort was viewed as a partisan Republican attempt to purge Federalists following the Marbury case.
      - 14 lower federal court judges have been impeached, with 8 convictions by the Senate.

  • 2. Altering Court Size: Congress has the power to change the number of justices on the Court.
      - The Court size became 9 in 1837; it was briefly 10 for five years in the 1860s.
      - FDR’s "Court Packing" Plan (1937): Franklin D. Roosevelt attempted to increase the Court's size because the conservative majority was striking down New Deal legislation. He proposed adding a new member for every sitting justice over the age of 70.5, claiming they were "out of touch."
      - The plan was dropped after resistance in Congress and because Justice Owen Roberts switched his position to favor New Deal policies.
      - Modern discussions of "court packing" or term limits occur, particularly from Democrats reacting to potentially long-term Republican control of the Court.

  • 3. Constitutional Amendments: Congress (with the states) can amend the Constitution to override judicial rulings.
      - 16th Amendment (1913): Established a direct income tax after the Supreme Court declared such efforts unconstitutional in Pollock v. Farmer’s Loan (1895).
      - Abrogation by Law: The Lilly Ledbetter Act (2009) regarding equal pay effectively overturned the Court's ruling in Ledbetter v. Goodyear Tire and Rubber (2007).

  • 4. Stripping Jurisdiction: Congress can remove specific issues from the courts' jurisdiction.
      - This is often proposed for hot-button issues like abortion.
      - Historical Example: Between 1863 and 1867, the Supreme Court's jurisdiction was altered during the suspension and restoration of habeas corpus for Confederate sympathizers during the Civil War.

Recent Developments and Foundational Perceptions

  • The "Cult of the Robe": The courts have historically maintained autonomy due to a political culture that values an independent judiciary free from political interference. This has historically led to high public approval ratings.

  • Challenges to Autonomy: Recent decisions have challenged this perceived autonomy and reduced public support as the Court is increasingly seen as part of the nation's divisive and polarizing politics.

  • Significant Recent Cases:
      - Bush v. Gore (2000): The Court effectively ended the 2000 election by halting the Florida recount, awarding the state to George W. Bush by 537 votes. Many Democrats perceived this as a partisan decision.
      - NFIB v. Sebelius (2012): The Court upheld the majority of the Affordable Care Act (Obamacare).
      - Obergefell v. Hodges (2015): Established the right for same-sex couples to marry.
      - Dobbs v. Jackson Women’s Health (2022): Removed the constitutional right to an abortion.
      - Trump v. United States (2024): Related to the events of January 6th; the Court ruled that presidents have "absolute immunity" for actions taken within the "outer perimeter of official duties."