Forward thinking: History in the making at SCOTUS

It all starts Sept. 4, 2018…

I’m referring to the confirmation hearing for U.S. Supreme Court nominee, Brett Kavanaugh. It all begins with opening statements by committee members Tuesday. The questioning of Kavanaugh will actually start Wednesday, Sept. 5. The hearings are expected to last three or four days.

President Trump nominated Kavanaugh on July 9 to replace retiring Justice Anthony Kennedy. However, he can assume the lifetime job on the nine-member court only after the Republican –controlled Senate votes to confirm him. If Judge Kavanaugh is confirmed to the Supreme Court, it could have a significant impact on the Court for decades to come since he is only 53 years old.

I for one will be waiting and watching with great interest as to the eventual outcome. With our nation’s attention being focused on the Kavanaugh hearings, I thought it would be a good time to review and reflect briefly on the Supreme Court of the United States, or SCOTUS as it is sometimes called.

SCOTUS is the only court expressly provided for in the Constitution. However, Congress is given the power to establish lower federal courts as it sees fit – “to constitute Tribunals inferior to the Supreme Court” (Art. 1/8).

Supreme Court Justices are nominated by the president and confirmed by the Senate. Interestingly enough, no qualifications are laid out in the Constitution. However, nominations are generally based on the candidate’s competence, ethics, ideology, political support and political activism.

Justices hold their positions for life, barring resignation or impeachment. When the Court was originally established in 1789, there were six justices. At one point after the Civil War, there were 10 justices. However, since 1869, the Court has been comprised of nine justices.

The Chief Justice of the Supreme Court presides over meetings, assigns writing of opinion and can significantly shape the Court’s direction. For example, the Marshall Court (1801-1835) under Chief justice John Marshall, greatly enhanced federal power at the expense of states’ rights. On the other hand, the Warren Court (1953-1969), under Chief Justice Earl Warren was more liberal and progressive and expanded civil and political rights.

The Supreme Court has jurisdiction over any case involving the U.S. Constitution, federal laws, treaties, and admiralty affairs; ambassadors, other public ministers or consuls; cases in which the U.S. or a state itself is a party or interstate affairs. Depending on the nature of the case, the Court has “original” or “appellate” jurisdiction.

There are three paths for a case to be brought before the Supreme Court.

The most common is the so-called “Writs of Certiorari.” In such cases, the Court grants a writ when it agrees to hear a case. Four of the nine justices must agree to hear the case. If the Court refuses to hear a case, then the lower court ruling stands.

This does not necessarily mean that the Court agrees with the lower court’s ruling. The Court might refuse to hear it if the case lacks national importance; if the issues at stake are too narrow – not a federal question; or if the Court is too divided on the matter.

The second most common path before the Court is simply the “Right of Appeal.” The Court must hear appeals of decisions made by three-judge district courts. In such cases, the Court can simply affirm or reverse the decision with a short statement.

The third path is known as the “In Forma Pauperism Petition.” Many of these petitions go unanswered. Only rarely does the Court hold a hearing and reopens the case. These petitions are too few to elaborate upon in my opinion.

On average the Supreme Court hears about 80 cases a years. Most of us do not ever hear about the decisions unless the cases are high-profile. A few of the more notable Court decisions in my life time included the following:

• Brown v. Board of Education (1954) – It declared segregation in schools unconstitutional, overturning the “separate but equal” doctrine established back in 1896.

• Engel v. Vitale (1962) – It ruled school prayer unconstitutional on the basis that it violates the Establishment Clause of the First Amendment.

• Miranda v. Arizona (1966) – It required police to make suspects aware of their rights to remain silent and to have an attorney present during questioning – the so-called Miranda Rights.

• Rode v. Wade (1973) – Ruled unconstitutional all laws outlawing abortion (except in the third trimester) on the basis that these laws violate the Fourteenth Amendment’s implied right for women to make private decisions about their bodies and reproductive capacities.

Anybody can be a justice. The Constitution outlines only two requirements. Justices must be appointed by the President and approved by the Senate. Justices do not have to be lawyers, citizens, or even 21. That said, every justice
who has ever served was a lawyer first.

Arguments are intimate. In other words, you are very close to the justices physically. The distance between the attorney podium and the justices’ bench is so short that if a justice and lawyer leaned very far forward, they could almost shake hands.

And finally, a few additional numbers for you to ponder. The yearly salary of the justices is $249,300 with the exception of the chief justice who makes $11,400 more. Attorneys have a maximum of 30 minutes to argue a case. There are 100-150 first-come, first-served public seats in the courtroom.

Zero TV cameras are allowed in the courtroom. Proceedings are never televised for security reasons and to discourage lawyers from playing to the camera or being intimidated or influenced by the presence of the media.

Back to the Kavanaugh hearings. A lot is at stake. The current makeup of the Supreme Court is evenly split. Whoever is ultimately confirmed by the Senate will be a swing vote. The forthcoming decisions by the Court will impact our nation’s future for generations.

There are those who view the Constitution as a “living document” in which justices can discover “new rights and new laws.” These justices are commonly viewed as “activist.” They are apt to make decisions that more readily reflect the rolling values of the current culture. Such a perspective is viewed by many as replacing or superseding the legislative powers of the Senate and the House of Representatives.

On the other side of this discussion are those on the more conservative end of the political spectrum. These have determined that their task is “to interpret and apply the constitution and the laws of the nation and states according to the “original” intent of those documents at the time they were written. This group is commonly viewed and referred to as “originalist.”

Again, I repeat. A lot is at stake at a time when there is an abundance of turmoil and political unrest in our country. It is anyone’s guess as to what may happen.

So, as they say down in Texas – take a deep seat, a tight wrap and hang on!

Until next time…

–By Loren Simmonds

Loren Simmonds has been a resident of Lynnwood for 37 years. He served on the Lynnwood City Council for 16 years, including eight as Council President. He remains active in the community by serving on the Parks and Recreation Foundation Board, Civil Service Commission and the Snohomish County Planning Commission. He believes that volunteerism sows the seeds of community. Loren is semi-retired and works as a writer, speaker and leadership coach.

  1. Thank you, Mr. Simmonds. I am very concerned about Kavanaugh because so much politics is being played in this area of our government that should be relatively free of party power. There are more that 100,000 documents on Kavanaugh that have not been released. His decision regarding Jane Doe in the pregnant immigrant girl’s case is clearly political, did not follow precedent, and was over-ruled. His dissent to that overruling decision showed that he had been sneakily playing games with that poor 17 year old, wanting to delay the process until she could no longer have an abortion. The Senate no longer has a filibuster option, which was useful in bringing attention to outrageous circumstances such as these. It is clear that Trump wants Kavanaugh because of the judge’s opinion that a sitting president cannot be indicted. He was suspected of lying to the congress last time he testified. There will be much despair in many populations of the nation if he gets confirmed, despite the glee of about 1/4 of us. When we cannot go to the courts for justice, the chances of violence go up.

  2. I appreciate your ability to educate the public on a very important topic without choosing a side. Too many do not understand the role of the court or how the justices come to be. Thank you for the reminder.

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