What Influences the Decisions of the Justices?

            The topic of discussion for this Constitution Monday concerns the activism and ideology that influence the decisions made by the U.S. Supreme Court. Decisions made by the Supreme Court are much in the news at this time because the Court recently published the decisions made in the 2021-2022 session. This post will discuss the factors that influence decisions in federal courts and particularly in the Supreme Court.

            The federal courts hear a small percentage – about three percent – of all the court cases in a given year, and the largest percentage of cases are heard in the state courts. Most federal cases begin in one of the 94 federal district courts – the lowest courts in the federal system. There are 678 federal district judges staffing those courts with the busier courts have more judges.

            About 20 percent of all lower-court cases are appealed to one of the 11 regional courts or the D.C. circuit. Each of them has a U.S. Court of Appeals. There are 179 court-of-appeals judges with some of the spots vacant at any given time. The decisions of the appeals courts are final except for the few cases appealed to the Supreme Court.

            The Supreme Court is the only federal court established by the Constitution. It is supreme in fact as well as in name. The decisions made by the Supreme Court cannot be appealed to a higher court or power.

            Federal judges and justices are nominated by the President of the United States and confirmed by the Senate. Political factors are decisive in the appointments and confirmations of judges and justices. Liberal presidents usually nominate liberal judges, while conservative presidents nominate conservative judges. If and how quickly a nomination moves through the Senate process depends on whether a conservative or liberal individual is dealing with a Democratic or Republican Senate.

Sometimes, liberal justices become more conservative after being appointed, and sometimes conservative justices become more liberal. However, their political ideology usually puts them either on the liberal side or the conservative side. The current Supreme Court is said to have a conservative majority of six to three. In actuality, there are four conservatives, two moderates, and three liberals.

Most of the cases that reach the Supreme Court arrive by way of appeal. According to a textbook titled We The People, “Article III of the Constitution and Supreme Court decisions define judicial power as extending only to ‘cases and controversies.’ This means that the case before a court must be an actual controversy, not a hypothetical one, with two truly adversarial parties” (Ginsberg et al., 2021, p. 411). Courts do not rule on proposed legislation or regulations and usually consider its constitutionality only after the law or regulation has been applied.

To have a case heard at the Supreme Court, the parties to the case must have standing. This means “the right of an individual or organization to initiate a court case, on the basis of having a substantial stake in the outcome” (Ginsberg et al., 2021, p. 411). The parties must show personal, economic, or even aesthetic injury to oneself.

An additional requirement for a case to be heard at the Supreme Court is for at least four of the nine justices to consider the case to be “special and compelling.” Such cases may involve conflicting decisions by two or more circuit courts, by circuit courts and state courts, or two or more state courts. They include circuit court decisions on matters of federal law that should be settled by the Supreme Court, or a circuit court decision on a matter than conflicts with a previous Supreme Court decision.

The solicitor general (the top government attorney in all matters before the Supreme Court) and the law clerks of the various justices have much influence in screening cases that are appealed to the Supreme Court. Approximately 6,500 cases are appealed annually to the Supreme Court, which accepts about 100 cases to review.

There are other influences on the decision-making process of the Supreme Court. The Court uses law and precedent to explain its decisions, even though it is the Court that determines what a law means and what importance the precedent will have on a certain case.

“The Supreme Court’s justices are acutely aware of the Court’s place in history, and their desire to protect its power and reputation for integrity can sometimes influence judicial thinking” (Ginsberg et al., 2021, p. 420). This influence came into play when the Court voted in favor of the constitutionality of the Affordable Care Act [Obamacare] in 2012 and again in 2015. Chief Justice John Roberts sough to protect the Court’s “legitimacy, reputation, and stature” while showing that “the Court stood above mere political ideology” (Ginsberg et al., 2021, p. 420).

The judicial philosophy of all judges, including justices, has a role in the decisions made by them. Judges and justices are said to practice judicial restraint when they “refuse to go beyond the clear words of the Constitution in interpreting the document’s meaning” (Ginsberg et al., 2021, p. 421). Judicial activism is an alternate to judicial restraint and is a “judicial philosophy that posits that the Court should go beyond the words of the Constitution or a statute to consider the broader societal implications of its decisions” (Ginsberg et al., 2021, p. 422).

Activism and restraint do not mean the same thing as liberalism and conservatism. Chief Justice William Rehnquist was considered to be a conservative, but he “was among the most activist in American history, particularly in such areas as federalism and election law” (Ginsberg et al., 2021, p. 422).

The Roberts Court follows the same route as Rehnquist. In “the 2014 case of McCutcheon v. Federal Election Commission, the Court struck down one of the major remaining elements of Congress’s efforts to regulate campaign finance” (Ginsberg et al., 2021, p. 422). The five conservative justices determined that “limits on how much individuals could contribute in any given election were a restraint on free speech. This decision could be described as ‘activist’ because it broadens the interpretation of ‘speech’ and overturns congressional legislation that has significant public support” (Ginsberg et al., 2021, p. 422).

Other influences in the decisions made by Supreme Court justices are political ideology and partisanship. “The philosophy of activism versus restraint is indeed sometimes a smoke screen for political ideology, and justices’ liberal or conservative attitudes and Democratic or Republican leanings play an important role in their decisions” (Ginsberg et al., 2021, p. 422). The authors of the textbook concluded:

Judicial philosophy, ideology, and institutional interest all influence the thinking of justices. In the end, however, the Supreme Court is a court of law and must pay heed to statutes and legal precedent. A decision that cannot be justified by law and precedent cannot be issued. To ignore the law would be to undermine the rule of law and to destroy the constitutional structure in which the Supreme Court occupies such a prominent place.

 

What Cases Are on the Supreme Court Docket for the 2021-2022 Term?

            Each year, the United States Supreme Court agrees to hear certain cases, and the 2021-22 year is no different. The high court usually hear the big and important cases. Zack Smith and Alexander Phipps at The Heritage Foundation previewed what they considered to be “five of the most important cases the Supreme Court will hear in its 2021-2022 term.” Here are their five choices. 

1. Dobbs v. Jackson Women’s Health Organization

This is the most important abortion case in the last 30 years. Essentially, the Supreme Court will have an opportunity to reconsider – and potentially overrule – its wayward decisions in Roe v. Wade and Planned Parenthood v. Casey.

In 2018, Mississippi enacted the Gestational Age Act, which prohibits abortions after 15 weeks of gestation except in cases of medical emergency or severe fetal abnormality.

The state legislature set forth two findings in the law: 1) 75% of all nations do not permit abortions past 12 weeks’ gestation, and 2) an unborn human’s heart starts beating after five to six weeks’ gestation and by nine weeks all “basic physiological functions are present.” …

It’s hard to overstate the potential impact of this ruling, whether it be a decision upholding the lower courts’ decisions and reaffirming Roe v. Wade and Planned Parenthood v. Casey, which would be a huge blow to the pro-life movement, a moderate ruling that would gradually diminish prior abortion precedents, or a broad decision completely overturning its previous decisions.

2. New York State Rifle & Pistol Association Inc. v. Bruen

This will be the first time in 11 years that the Supreme Court will review a significant Second Amendment case.

New York requires its residents to obtain a license for lawful possession of a firearm, regardless of whether they plan to keep it at home or take it outside. To obtain a license, a licensing officer must determine whether the applicant is of good moral character, lacks a history of crime or mental illness, and that “no good cause exists for the denial of the license.” …

3. Carson v. Makin

The Carson and Nelson families are challenging Maine’s prohibition of applying state funds from the state’s tuition assistance program towards secondary schools that, in addition to teaching academic subjects, provide religious instruction.

Petitioners argue this law prevents their families from using the funds towards the schools they consider to be best for their children and, more importantly, that it violates their Constitutional rights under the free exercise, establishment, and equal protection clauses…

The issue before the Supreme Court is whether a state violates the First or 14^th Amendments by prohibiting students from choosing to use student-aid funds towards schools that provide religious instruction.

4. CVS Pharmacy Inc. v. Doe

This case raises the issue of whether policies that disparately impact disabled groups violate the anti-discrimination provisions of the Rehabilitation Act and the Patient Protection and Affordable Care Act.

The respondents, using “John Doe” aliases, are enrollees of employee-sponsored health care who are afflicted with HIV. The petitioners, all wholly owned subsidiaries of CVS Health Corporation, provide the John Does with their medication….

The outcome of this case will clarify whether, and if so the extent to which, facially neutral policies can be deemed discriminatory if they disparately impact a distinct group.

5. United States v. Zubaydah

This case involves the state-secrets privilege, which was established by Supreme Court precedent in United States v. Reynolds. In United States v. Reynolds, the Supreme Court held that courts must exclude privileged evidence if it threatens national security interests.

Abu Zubaydah is a former associate of Osama bin Laden who was detained in Pakistan by the CIA for being an enemy combatant and put in a detention facility in Poland. During his time there, the CIA used enhanced interrogation techniques on Zubaydah.

Poland launched a criminal investigation into the CIA’s operations there, and Zubaydah asked a U.S. federal district court to order the U.S. government to provide Poland with information pertaining to his detention. The district court was initially willing to grant discover for these materials until the U.S. government blocked it, citing the state secrets privilege established in the United States v. Reynolds….

The issue before the Supreme Court is whether the 9^th Circuit erred in its assessment of these materials concerning their potential to harm national security.

            The five outlined cases include abortion, Second Amendment, religious freedom, treatment of disabled persons, and national security issues – all important matters. However, as Smith and Phipps reminded their readers, these are “only a few of the cases” that will be heard by the Supreme Court this term. Other cases are “important death penalty cases” and “a host of other important cases.” We should all pray for the justices that they will judge the cases according to the Constitution and not be swayed by political pressure.