Everything You Need to Know About The Supreme Court of the United States. This Episode Will Make You Smarter Than the Average American!
34:59 Share

You are listening to the Jordan is my lawyer podcast, your favorite source of unbiased news and legal analysis. Enjoy the show. Welcome back to the Jordan is my lawyer podcast. Happy Tuesday. I have a special episode for you today. This episode is unlike all of my other episodes. I am on vacation. I'm taking the day off, but I was talking to someone recently about the Supreme Court

Court, and they actually suggested that I do an episode on it because a lot of the history and semantics of the Supreme Court are not well known. And the person who I was speaking with wasn't familiar with a lot of the things that I was talking about. So I decided to look into it.

And what I found was a bunch of different surveys that asked people how much they knew about the Supreme Court. In a 2015 survey done by the Annenberg Public Policy Center, 32% of Americans couldn't identify the Supreme Court as one of the three branches of the federal government.

In that same survey, 28% thought Supreme Court case decisions returned to Congress for reconsideration.

A slightly older study done in 2011 by Newsweek found that only 37% of respondents knew that there are nine justices on the Supreme Court. In a 2016 study titled A Crisis in Civic Education, almost 10% of respondents thought Judge Judy was on the Supreme Court.

And more recently, a C-SPAN poll showed that 52% of voters in America couldn't name any of the nine Supreme Court justices.

Needless to say, when I saw this information, I said, I am doing an episode on this because more people need to know how the Supreme Court works, even the history behind the Supreme Court. It's all not only so important, but it's also very interesting. So throughout this episode, I'm going to talk through what the Supreme Court is, how the Supreme Court came about, who the current justices are, what the selection process looks like,

how the case procedure works, and what the Supreme Court's schedule looks like. So you're bound to learn a lot in this episode. There's going to be a lot of information. I'm going to try to talk slow so you can digest it all, but I really hope you enjoy this unusual but very important episode of the Jordan is My Lawyer podcast.

The Supreme Court is the highest court in the land and it can be found at 1 First Street Northeast in Washington, D.C. It is a beautiful building. If you've never been, I highly recommend going to see it at least once in your life.

The Supreme Court is comprised of nine justices, one of which is the chief justice. The other eight justices are known as associate justices, and we'll get into the role of a chief justice and how the chief justice differs from the associate justices in a little bit.

But when the Supreme Court was created, there were six justices on the court. And that number changed five times after that until Congress eventually landed on nine in 1869. And it has not changed since. So how did the Supreme Court come about?

The answer lies with the Judiciary Act of 1789. On September 4th, 1789, George Washington signed into law the Judiciary Act. And the Judiciary Act created the structure and jurisdiction of the federal court system. It created the position of the Attorney General in the United States. And yes, it created the Supreme Court. And at this time, as I said, the Supreme Court was a tribunal of six justices.

And these justices were to serve on the Supreme Court until they either retired or passed away. Article 3 of the Constitution gave the Supreme Court jurisdiction over U.S. laws. John Jay became the first chief justice. The five associate justices on the bench were John Rutledge, William Cushing, John Blair, Robert Harrison, and James Wilson.

The first session of the Supreme Court was held roughly two years after its creation on February 1st, 1790 in the New York City's Merchants Exchange Building. And this is because New York City was the nation's capital at the time.

And the Supreme Court's first opinion came in 1791 in the case of West v. Barnes. And I do have this opinion linked for you on my website. It's very interesting to see how these opinions have changed over the years and to see what the opinions looked like all the way back in the 1700s, late 1700s, that is. So let's now talk about how the Supreme Court justices are appointed.

The Constitution actually does not specify any particular qualifications. Nowadays, though, all of the nominees have years of experience in the law as both attorneys and judges. Not all of them have been judges, but definitely have a law degree. So again, the Constitution does not specify any particular qualifications.

Speaking of qualifications, here are some qualifications or in some cases lack of qualifications of some past justices. At least six justices were foreign born. So we had a justice from Scotland, England, Ireland, Turkey and Austria.

One of the justices never even graduated from high school. His name was James Burns. He served in 1941, but only for 15 months. So maybe there's something to be said about we haven't had a justice since then that hasn't graduated high school. But one last fun fact is that Joseph Story, who was a previous justice, was only 32 years old when he joined the bench.

And by the way, when I say bench, that is what we refer to as the justices on the court. So when we say so-and-so served on the bench or so-and-so is on the bench, that's what we're referring to, that bench of nine justices. Now, when a vacancy happens on the bench, the sitting president will nominate a justice.

That justice then submits a detailed questionnaire, which inquires into various things like tax records, payments to domestic help, income information, educational background, and so much more.

From there, the nominee will sit before the Senate Judiciary Committee for a series of hearings where they're going to be asked about themselves. They can be asked about how they feel about particular rulings from the Supreme Court, their law record, their personal past, and more. So when Justice Gorsuch, Justice Barrett, and Justice Kavanaugh were nominated to the bench,

They were asked how they felt about Roe versus Wade just to kind of gauge where they stood with the issue of abortion. And these hearings typically last on average 60 days.

From there, the Senate Judiciary Committee votes to send a nomination to the full Senate with either a recommendation of approval or a recommendation of rejection. Whether the members of the Senate Judiciary Committee approve or reject usually falls in line with their political party. This isn't always the case. Obviously, we do see exceptions, but typically that is the case.

The full Senate then holds their own hearings on the nominee and will send it to a vote. The final vote in the Senate only requires a simple majority of

of the present senators to pass. So the senators that are present in the chamber at the time of the vote, there has to be a simple majority. If there is, then the nomination will pass. If there is not a simple majority, that nomination is rejected. If there is a tie, the power to break the tie rests with the vice president. Now, if the vote passes, then the president will formally appoint the justice to the court

And that is when the appointee recites the oath. So there are two oaths that a justice has to take. There is the constitutional oath and the judicial oath.

The constitutional oath is an oath taken by all federal officials to support the Constitution. This includes all members of the executive, judicial, and legislative branches. This is not an oath only taken by justices. The judicial oath, on the other hand, gets its origins from the Judiciary Act of 1789, that act we talked about previously that established the Supreme Court and the Attorney General, among other things.

And it's only been amended one time since then, which was in 1990. And what the judicial oath says is this.

I solemnly swear that I will administer justice without respect to persons and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all of the duties incumbent upon me as blank insert name here under the Constitution and laws of the United States. So help me God.

That is the judicial oath. So those are the two oaths that a justice has to take once they've gone through that whole process that we just went over. Now, I want to talk about the current justices that are on the bench. But before we do that, I want to go over quickly the chief justice versus associate justices.

The chief justice is the highest power justice. The court is named after them. So as an example, right now, the current court is called the Roberts Court, Chief Justice Roberts being the chief justice.

Let's talk about Chief Justice Roberts a little bit, and then we'll get into the other justices. Chief Justice Roberts was nominated by President George W. Bush in 2005. He took his seat on the bench later that year in September. He is a double Harvard graduate. Before becoming chief justice, he served as a law clerk in the U.S. Court of Appeals for the Second Circuit. He was also a chief justice for the U.S. Supreme Court of Appeals.

He also served as special assistant to the Attorney General of the United States and associate counsel to President Reagan, the White House Counsel's Office, the principal deputy solicitor general, and the DOJ.

After all of that, he practiced law for about 10 years in D.C., and he was then appointed to the United States Court of Appeals for the District of Columbia Circuit and was then eventually nominated to the Supreme Court. As far as his ideological views, he tends to have a moderate conservative philosophy, but he is primarily an institutionalist.

Then we have Justice Gorsuch. Justice Neil Gorsuch was a Trump nominee. He took his seat in April of 2017, and he took the seat of Justice Scalia when he passed. Justice Gorsuch went to Columbia for undergrad and Harvard for law school. He was actually classmates with President Obama.

And he previously served as a law clerk for the United States Court of Appeals for the District of Columbia Circuit, a law clerk to two previous justices on the Supreme Court. He did his time in private practice. He did a brief stint as principal deputy associate attorney general at the DOJ. He served on the United States Court of Appeals for the 10th Circuit.

He taught at the University of Colorado Law School, and he has served on various committees like the Standing Committee on Rules for Practice and Procedure of the United States Judicial Conference. He has been described as a constitutional originalist, meaning the Constitution should be construed as it was by our founding fathers. And ideologically, he leans conservative.

Justice Alito, Justice Samuel Alito, that is, was nominated by President George W. Bush. He took his seat on the bench in January of 2006.

He attended undergrad at Princeton, went to Yale for law school. And a fun fact about Justice Alito is that his Princeton yearbook said that one of his aspirations was to become a Supreme Court justice. Out of law school, he clerked for the United States Court of Appeals for the Third Circuit, went on to accept a position as an assistant U.S. attorney for the District of New Jersey. He then became an assistant to the United States Solicitor General,

was then appointed by President Reagan to United States Attorney for the District of New Jersey, and then he sat on the bench for the United States Court of Appeals for the Third Circuit.

He served there for 16 years before he took his position on the Supreme Court bench in 2005, and he took over for Justice O'Connor. Another fun fact is that George H.W. was the one who appointed Alito to the United States Court of Appeals for the Third Circuit, and 16 years later, H.W.'s son, George W., appointed Justice Alito to the Supreme Court.

While Justice Alito is known for his right-wing leanings, his rulings are a bit hard to predict because he does do a good job at approaching each case on a case-by-case basis, and he does sometimes incorporate libertarian ideals. Then we have Justice Thomas, who is arguably one of the most controversial justices in that he

is an originalist through and through justice. Clarence Thomas went to undergrad at the college of the Holy cross and attended law school at Yale out of law school. He served as the assistant attorney general of Missouri. He practiced in house for a bit before becoming a legislative assistant to a Senator and

He then served as Assistant Secretary for Civil Rights, the U.S. Department of Education, and as Chairman for the U.S. Equal Employment Opportunity Commission.

In 1990 is when he took his first judicial role, where he served for the U.S. Court of Appeals for the District of Columbia Circuit. But he was barely there for a year before President Bush nominated him to the Supreme Court in 1991. A fun fact about Justice Thomas is despite getting into Yale for law school due to the open admissions program that offered positions to black students in all white colleges, he

Justice Thomas has really grown to resent affirmative action. Through his career, mainly his early career, his colleagues would often attribute his success to him being black and

and would say that he was given the opportunities that he was because he was black. And therefore, he really grew this resentment for affirmative action, which is why in the recent Supreme Court decision, you know, striking down affirmative action, Justice Thomas was one of those that was adamantly against keeping affirmative action in place. Next, we have Justice Kagan. She was appointed by President Obama in 2010. She went to undergrad at Princeton. Her

Harvard for law school. She started her career clerking for the United States Court of Appeals for the D.C. Circuit and then for a justice on the Supreme Court in 1987. When I say clerking, you are basically the judge's right hand. You're doing all the dirty work for the judge or the justice in this case.

After working as a clerk, Justice Kagan briefly practiced law. She then became a law professor. She served four years in the Clinton administration as the associate counsel to the president and then as deputy assistant to the president for domestic policy. Justice Kagan became the dean of Harvard Law between 2003 and 2009 before President Obama nominated her as solicitor general of the United States. And one year later, she took her seat on the Supreme Court.

Unlike the other justices we've talked about and the others that we will talk about, she has never served as a judge prior to taking her seat. So all of the other justices at one time or another served as a judge on some court. Justice Kagan only clerked for a judge, which is not the same thing. So she actually never had any experience as a judge before becoming a Supreme Court justice. Justice Kagan's views tend to be liberal and progressive.

Then we have Justice Amy Coney Barrett. Justice Barrett was nominated by President Trump in 2020. She attended Rhodes College for undergrad and Notre Dame Law School. She served as a law clerk for the United States Court of Appeals for the D.C. Circuit. Are you noticing a trend here, by the way, with the Court of Appeals for the D.C. Circuit? She then clerked for Justice Scalia of the Supreme Court in 1998. She joined private practice as a lawyer.

Then she became a law professor at Notre Dame. She was appointed as a judge of the United States Court of Appeals for the Seventh Circuit in 2017. And three years later, she was appointed to the Supreme Court. Her ideological views tend to lean right with an appreciation for originalism, in part because of her clerkship with Scalia. Scalia was a big originalist.

Then we have Justice Kavanaugh. Justice Brett Kavanaugh was nominated by President Trump in 2018. He is a double Yale, so he went to Yale for undergrad and law school. Upon graduating, he served as a clerk for the United States Court of Appeals for the Third Circuit and then for the Ninth Circuit before clerking for Justice Kennedy of the Supreme Court in 1993.

Thereafter, he held various positions, including but not limited to associate counsel in the Office of Independent Counsel. He was a partner at a D.C. law firm. He was associate counsel and then senior associate counsel to President George W. Bush. He was a judge for the United States Court of Appeals for the District of Columbia Circuit. And then he finally took his seat on the Supreme Court in 2018.

He has been called the court's median justice. So ideologically, he tends to be moderate with a slight lean towards conservative doctrines. If you are breaking up the justices between conservative and liberal, though, he is one of the court's conservative justices.

Then second to last, we have Justice Jackson. Justice Contagi Brown Jackson is the first black woman to serve on the Supreme Court. She was nominated by President Biden in 2022. She went to Harvard Radcliffe College for undergrad and then Harvard Law. She clerked for the United States District Court for the District of Massachusetts and then the United States Court of Appeals for the First Circuit. She was then a clerk for Justice Breyer of the Supreme Court in 1999.

She spent three years in private practice, held a few government positions, and returned to private practice for a few years before President Obama nominated her in 2012 to the United States District Court for the District of Columbia, where she served from 2013 to 2021.

And in 2021, President Biden appointed her to the United States Court of Appeals for the District of Columbia Circuit. And then about a year later, appointed her to the Supreme Court, where she took her seat in June of 2022.

Her views are said to be liberal centrist, much like Justice Breyer, if you are familiar with Justice Breyer. And that also happens to be the justice she clerked for. So a lot of these justices you'll see if they previously clerked for a justice, they tend to share the same views as the justices they once clerked for.

And finally, we have Justice Sotomayor. Justice Sonia Sotomayor was nominated by President Obama in 2009. She went to Princeton for undergrad, Yale for law school.

Out of law school, she served as an assistant district attorney in the New York County District Attorney's Office. She was there for about five years before she turned to private practice, where she eventually made partner before President George H.W. Bush nominated her to the United States District Court in the Southern District of New York in 1991. She served there until 1998 when President Clinton nominated her to the United States Court of Appeals for the Second Circuit.

And she was there until 2009 when President Obama nominated her to the Supreme Court. Justice Sotomayor's views are described as liberal. Some even consider her to be the most liberal justice on the court.

So when I described each of these justices' ideological views, I know a lot of people think justices are supposed to be impartial. They're not supposed to side with one political party or another. But the reality is they all have ideological views. They're all human. They all share certain views on certain things. And when they decide each case, they're obviously going to apply certain

their own ideological views to any situation. Because if you think about it, you know, one time I got the question, why do justices vary so much when it comes to these cases? Like if the law is the law, shouldn't all of the justices rule the same? The law is the law. The reality is these justices, their job is to interpret the law. The law is never clear. And one thing that's really hammered into you in law school, the answer is always it depends.

And that's why we have lawyers, because lawyers can argue one side or the other, depending on which side they're representing. So when you think about these justices, they are lawyers. This is what they do. They can argue one side or the other. There is one side that they feel more strongly about than the other. And that's ultimately how they rule.

But the justices being lawyers means that, sure, they will see some issues in a unanimous light and all see it the same way.

But a lot of the time, you're going to have justices seeing issues in a completely different light, a completely different lens, and arguing the way they see it. And that's exactly why we have majority opinions and dissenting opinions, because they're not always going to agree. So Axios did a little scoring on the Supreme Court justices and placed them all on a chart of

Ranking somewhere on a conservative to liberal or liberal to conservative spectrum. So this chart ranks the conservative justices as Chief Justice Roberts and justices Thomas, Alito, Gorsuch, Barrett, and Kavanaugh. The chart ranks them from most conservative to least conservative. And

And it goes Justice Thomas as most conservative and then Alito and then Gorsuch and then Barrett and then Kavanaugh and then Chief Justice Roberts. So Chief Justice Roberts is is still considered conservative, but the least conservative of the conservative justices.

Then the chart ranks the liberal justices as Justice Kagan and Justice Sotomayor, although this chart wasn't updated to include Justice Jackson, who was the most recent appointee. But it has Justice Sotomayor as the most liberal and Justice Kagan as liberal, but not nearly as liberal as Justice Sotomayor. So that kind of gives you an idea of where these justices stand ideologically. Last but not least, let's talk about what the procedure looks like for the court.

So each Supreme Court term starts on the first Monday in October and goes through the Sunday before the first Monday in October of the following year. So it's one year long.

But the court is typically on break from late June or early July, whenever they release all of their decisions, until arguments start again in October. So they have this recess from typically July, August, September, and then they come back October. So really, the justices are working from October through June. And then, like I said, they'll get most of July, all of August, and all of September off.

From October through December, arguments are heard during the first two weeks of each month. Then from January through April, arguments are heard on the last two weeks of each month. During each two-week session, oral arguments are only heard on Mondays, Tuesdays, and Wednesdays. And this can change if the court says otherwise, but that is the typical procedure.

Usually it's two arguments each day. The first argument will start at 10 a.m. Each case gets one hour, which means each side has 30 minutes to present their case. But you have to factor in that during this 30 minute period, you have all nine justices throwing you questions from all angles because this is their opportunity to get their questions answered.

But it actually makes sense if you think about it, because prior to oral arguments, lawyers have to file their brief with the court. And that is what the court uses to kind of see what the case is about, see what the arguments are on both sides. So rather than listening to everything the lawyers have to say all over again, when the justices can just read the briefs, the justices take advantage of this time having the lawyers in front of them to ask them any questions that they have about the issues.

Now, as far as the format of the arguments, if you took speech and debate in high school, this will probably sound familiar to you. But the petitioner or the one asking the court to hear this case goes first and they can reserve time at the end for a rebuttal or not. They don't have to. If they don't, the petitioner will argue for 30 minutes and or, you know, answer questions from the justices for 30 minutes. The respondent, which you may better know as a defendant,

then goes for 30 minutes. So they'll argue slash answer questions for 30 minutes and it's done. But let's say the petitioner reserves five minutes for rebuttal. The petitioner would argue and answer questions for 25 minutes. The respondents would argue for 30 minutes and then the petitioners would rebut for five minutes at the end. Once these arguments are over, at what point do the justices decide the case?

Cases are decided at the justices' conferences. When court is in session, so October through April, there are two conferences per week, and they happen on Wednesday afternoon and Friday afternoon. On Wednesday, they'll talk about the cases that they heard on Monday, and on Friday,

And Friday, they talk about the cases heard on Tuesday and Wednesday. The justices are not allowed to bring these cases outside of the courthouse. So they can discuss the case with their law clerks, their secretaries, etc. To like kind of get other perspectives on the issue. But they can't go out to dinner with their friends and talk about the case. That's a no-no.

When it comes time for the justices conference, what will happen is the chief justice starts the session by calling it into order. All justices shake hands and they get to business. The Supreme Court, one thing about the Supreme Court, and look, you got to respect it. It doesn't matter if you don't necessarily agree with the rulings of the court at a particular time, depending on what justices are sitting on the bench. One thing that is very respectable about the Supreme Court is it doesn't matter whether

what ideological views each justice has, they will always, always, always be very respectful of one another. And one of my favorite stories or one of my favorite, I don't know, I don't know what you would call this, maybe pastime. I don't know. But Justice Ginsburg, who was a known liberal justice and Justice Scalia, who was a known conservative justice, they were

best friends like best friends you can look up stories about them there are stories until the end of time about their friendship and they had so much respect and admiration for each other and i just love that no matter what the supreme court justices will always respect one another

So they get into this conference, they shake hands, and they get to business. The first order of business is usually petitions for certiorari. This is when petitioners petition the court, hence their name, petitioners. They're petitioning the court to hear their case. The justices will decide whether to accept or reject these petitions. So they either decide, yes, we will hear this case, or no, we will not hear this case.

After the petitions for certiorari are dealt with, the justices talk about the cases that were heard since their last conference. When a case is discussed, each justice has an opportunity to speak their views and raise any questions or concerns that they have.

And to keep in line with the formalities of the Supreme Court, there is an order as to when each justice speaks. So the chief justice goes first and he speaks his views and raises any questions or concerns that he has.

And then each justice will speak in descending order of seniority. So the last justice to speak is the one who's been on the court for the least amount of time. So in this case, in the Roberts court right now, it would be Justice Jackson, who is speaking last.

Once all of the justices have spoken their piece, the chief justice casts the first vote. And then again, each justice casts their vote in descending order of seniority. Once all of the votes are counted, and when I say vote, I mean which party to rule in favor of. Once all of the votes are counted, the chief justice assigns a justice in the majority. So let's say, you know, five justices vote for the petitioner, four justices vote for the respondent.

Those out of those five justices that voted for the petitioner, the chief justice will assign one of those five in the majority to write that opinion.

However, this is only if the chief justice is in the majority with the justices he's choosing from. If the chief justice is in the dissent, so let's say he was one of the four justices that voted in favor of the respondents, then the most senior justice in the majority will assign the justice to write the opinion of the court.

Similarly, if the chief justice is in the majority and therefore deciding the justice in the majority that will write the opinion of the court, the most senior justice in the dissent will assign a justice to write the dissent. But any justice is welcome to write a separate dissent if they want. And this is unlike the majority where there is only one majority opinion written.

Now, the exception here is, of course, a concurrence. So if a justice agrees with the outcome of the case, but not necessarily the rationale, that justice can write a concurring opinion. So let's say there's a justice that is part of those five that voted in favor of the petitioner, and he or she agrees that the petitioner should be the prevailing party, but he or she doesn't necessarily agree with the rationale of why the petitioner should prevail.

In that case, the justice can write a concurring opinion. In the case that it's a tie, so...

The only way this would happen, because obviously the court is nine justices, so there's usually going to be a five to four or six to three, whatever it is. The only time that there would happen where there's a tie is if there's a vacancy on the bench or if a justice had to recuse himself or herself from the case for some reason, like a conflict of interest. So we just saw this in the Harvard case. So the Harvard and UNC cases dealing with affirmative action.

In the Harvard case, Justice Jackson had to recuse herself because she was, I believe, on Harvard's board or something while they had the litigation going on in the past. So she had to recuse herself from that case. But nonetheless, if she recuses herself, then you're left with eight justices and now you could have a split decision.

In that case, it was a little bit of a different story because the UNC and Harvard decision were combined. So it wasn't really an issue. But in the case that it's a tie and, you know, it's not like the UNC Harvard decision where it's it's combined into one decision and it's just a typical traditional tie.

then the decision of the lower court will stand. So they don't have a rehearing or anything like that. They just say this is a tie. The lower court's decision is the, you know, that is the end all be all.

Typically, opinions that are unanimous are released sooner. Now, this isn't always the case. We obviously saw at the end of June this year, there were some unanimous decisions that came down. But typically, opinions that are unanimous are released sooner than opinions that are more controversial. So as you saw just in the last few weeks, the more controversial cases were released at the

at the very end of the term. So we got affirmative action. We got the gay rights versus the small business owners rights. We got the student loan decision, the case that was dealing with religious accommodations in the workplace.

So you can see like the more controversial cases are saved for last. We also saw this last year when Dobbs versus Jackson Women's Health Organization was released. That's obviously the case that overturned Roe versus Wade. That was the absolute last decision that the Supreme Court released for that term. So that is typically how it goes. But again, there's always exceptions. It's not that's not always the case. I hope you guys enjoyed this episode. I hope you learned a lot.

Now, if you're interested in learning more or I talked about something that you want to know more about, I do have all of my sources linked on my website. You can also find it in the podcast description. It says all sources can be found here. You can click that and I have all of the links for you. If you learned a lot in this episode,

please do me a favor and either leave me a review. That's obviously the best option because that really helps my show. Or if you listen on Spotify, there's a section that asks you what you think about this episode. If you can let me know your thoughts there, that would be great. I truly just hope you guys took something away from this that you didn't know before. So with that being said, thank you for being here. As always, have a great week and I will talk to you on Friday.