Supreme Court of the United States

Chief Justice Marshall (1801–1835)

Under Chief Justices Jay, Rutledge, and Ellsworth (1789–1801), the Court heard few cases; its first decision was West v. Barnes (1791), a case involving procedure.[12] As the Court initially had only six members, every decision that it made by a majority was also made by two-thirds (voting four to two).[13] However, Congress has always allowed less than the court's full membership to make decisions, starting with a quorum of four justices in 1789.[14] The court lacked a home of its own and had little prestige,[15] a situation not helped by the era's highest-profile case, Chisholm v. Georgia (1793), which was reversed within two years by the adoption of the Eleventh Amendment.[16]

The court's power and prestige grew substantially during the Marshall Court (1801–1835).[17] Under Marshall, the court established the power of judicial review over acts of Congress,[18] including specifying itself as the supreme expositor of the Constitution (Marbury v. Madison)[19][20] and making several important constitutional rulings that gave shape and substance to the balance of power between the federal government and states (notably, Martin v. Hunter's Lessee, McCulloch v. Maryland and Gibbons v. Ogden).[21][22][23][24]

The Marshall Court also ended the practice of each justice issuing his opinion seriatim,[25] a remnant of British tradition,[26] and instead issuing a single majority opinion.[25] Also during Marshall's tenure, although beyond the Court's control, the impeachment and acquittal of Justice Samuel Chase in 1804–05 helped cement the principle of judicial independence.[27][28]

The Taney Court (1836–1864) made several important rulings, such as Sheldon v. Sill, which held that while Congress may not limit the subjects the Supreme Court may hear, it may limit the jurisdiction of the lower federal courts to prevent them from hearing cases dealing with certain subjects.[29] Nevertheless, it is primarily remembered for its ruling in Dred Scott v. Sandford,[30] which helped precipitate the Civil War.[31] In the Reconstruction era, the Chase, Waite, and Fuller Courts (1864–1910) interpreted the new Civil War amendments to the Constitution[24] and developed the doctrine of substantive due process (Lochner v. New York;[32] Adair v. United States).[33]

Under the White and Taft Courts (1910–1930), the Court held that the Fourteenth Amendment had incorporated some guarantees of the Bill of Rights against the states (Gitlow v. New York),[34] grappled with the new antitrust statutes (Standard Oil Co. of New Jersey v. United States), upheld the constitutionality of military conscription (Selective Draft Law Cases)[35] and brought the substantive due process doctrine to its first apogee (Adkins v. Children's Hospital).[36]

The Hughes Court in 1937, photographed by Erich Salomon. Members include Chief Justice Charles Evans Hughes (center), Louis Brandeis, Benjamin N. Cardozo, Harlan Stone, Owen Roberts, and the "Four Horsemen" Pierce Butler, James Clark McReynolds, George Sutherland, and Willis Van Devanter, who opposed New Deal policies.

During the Hughes, Stone, and Vinson Courts (1930–1953), the Court gained its own accommodation in 1935[37] and changed its interpretation of the Constitution, giving a broader reading to the powers of the federal government to facilitate President Franklin Roosevelt's New Deal (most prominently West Coast Hotel Co. v. Parrish, Wickard v. Filburn, United States v. Darby and United States v. Butler).[38][39][40] During World War II, the Court continued to favor government power, upholding the internment of Japanese citizens (Korematsu v. United States) and the mandatory pledge of allegiance (Minersville School District v. Gobitis). Nevertheless, Gobitis was soon repudiated (West Virginia State Board of Education v. Barnette), and the Steel Seizure Case restricted the pro-government trend.

The Warren Court (1953–1969) dramatically expanded the force of Constitutional civil liberties.[41] It held that segregation in public schools violates equal protection (Brown v. Board of Education, Bolling v. Sharpe and Green v. County School Bd.)[42] and that traditional legislative district boundaries violated the right to vote (Reynolds v. Sims). It created a general right to privacy (Griswold v. Connecticut),[43] limited the role of religion in public school (most prominently Engel v. Vitale and Abington School District v. Schempp),[44][45] incorporated most guarantees of the Bill of Rights against the States—prominently Mapp v. Ohio (the exclusionary rule) and Gideon v. Wainwright (right to appointed counsel),[46][47]—and required that criminal suspects be apprised of all these rights by police (Miranda v. Arizona).[48] At the same time, however, the Court limited defamation suits by public figures (New York Times v. Sullivan) and supplied the government with an unbroken run of antitrust victories.[49]

The Burger Court (1969–1986) marked a conservative shift.[50] It also expanded Griswold's right to privacy to strike down abortion laws (Roe v. Wade),[51] but divided deeply on affirmative action (Regents of the University of California v. Bakke)[52] and campaign finance regulation (Buckley v. Valeo).[53] It also wavered on the death penalty, ruling first that most applications were defective (Furman v. Georgia),[54] but later, that the death penalty itself was not unconstitutional (Gregg v. Georgia).[54][55][56]

Justices of the Supreme Court with President George W. Bush (center), October 2005.

The Rehnquist Court (1986–2005) was noted for its revival of judicial enforcement of federalism,[57] emphasizing the limits of the Constitution's affirmative grants of power (United States v. Lopez) and the force of its restrictions on those powers (Seminole Tribe v. Florida, City of Boerne v. Flores).[58][59][60][61][62] It struck down single-sex state schools as a violation of equal protection (United States v. Virginia), laws against sodomy as violations of substantive due process (Lawrence v. Texas),[63] and the line item veto (Clinton v. New York), but upheld school vouchers (Zelman v. Simmons-Harris) and reaffirmed Roe's restrictions on abortion laws (Planned Parenthood v. Casey).[64] The Court's decision in Bush v. Gore, which ended the electoral recount during the presidential election of 2000, was especially controversial.[65][66]

The Roberts Court (2005–present) is regarded as more conservative than the Rehnquist Court.[67][68][69][70] Some of its major rulings have concerned federal preemption (Wyeth v. Levine), civil procedure (Twombly-Iqbal), abortion (Gonzales v. Carhart),[71] climate change (Massachusetts v. EPA), same-sex marriage (United States v. Windsor and Obergefell v. Hodges) and the Bill of Rights, notably in Citizens United v. Federal Election Commission (First Amendment),[72] Heller-McDonald (Second Amendment)[73] and Baze v. Rees (Eighth Amendment).[74][75]

Article III of the Constitution sets neither the size of the Supreme Court nor any specific positions on it (though existence of the office of chief justice is tacitly acknowledged in Article I, Section 3, Clause 6). Instead, these powers are entrusted to Congress, which initially established a six-member Supreme Court composed of a chief justice and five associate justices through Judiciary Act of 1789. The size of the Court was first altered by an 1801 act which would have reduced the size of the court to five members upon its next vacancy, but an 1802 act promptly negated the 1801 act, legally restoring the court's size to six members before any such vacancy occurred. As the nation's boundaries grew, Congress added justices to correspond with the growing number of judicial circuits: seven in 1807, nine in 1837, and ten in 1863.[76]

In 1866, at the behest of Chief Justice Chase and in an attempt to limit the power of Andrew Johnson, Congress passed an act providing that the next three justices to retire would not be replaced, which would thin the bench to seven justices by attrition. Consequently, one seat was removed in 1866 and a second in 1867. In 1869, however, the Circuit Judges Act returned the number of justices to nine,[77] where it has since remained.

President Franklin D. Roosevelt attempted to expand the Court in 1937. His proposal envisioned appointment of one additional justice for each incumbent justice who reached the age of 70 years 6 months and refused retirement, up to a maximum bench of 15 justices. The proposal was ostensibly to ease the burden of the docket on elderly judges, but the actual purpose was widely understood as an effort to "pack" the Court with justices who would support Roosevelt's New Deal.[78] The plan, usually called the "court-packing plan", failed in Congress.[79] Nevertheless, the Court's balance began to shift within months when Justice Willis Van Devanter retired and was replaced by Senator Hugo Black. By the end of 1941, Roosevelt had appointed seven justices and elevated Harlan Fiske Stone to Chief Justice.[80]

Article II, Section 2, Clause 2 of the United States Constitution, known as the Appointments Clause, empowers the president to nominate and, with the confirmation (advice and consent) of the United States Senate, to appoint public officials, including justices of the Supreme Court. This clause is one example of the system of checks and balances inherent in the Constitution. The president has the plenary power to nominate, while the Senate possesses the plenary power to reject or confirm the nominee. The Constitution sets no qualifications for service as a justice, thus a president may nominate anyone to serve, and the Senate may not set any qualifications or otherwise limit who the president can choose.[81]

Flowchart showing process of appointment of United States Supreme Court justices.

In modern times, the confirmation process has attracted considerable attention from the press and advocacy groups, which lobby senators to confirm or to reject a nominee depending on whether their track record aligns with the group's views. The Senate Judiciary Committee conducts hearings and votes on whether the nomination should go to the full Senate with a positive, negative or neutral report. The committee's practice of personally interviewing nominees is relatively recent. The first nominee to appear before the committee was Harlan Fiske Stone in 1925, who sought to quell concerns about his links to Wall Street, and the modern practice of questioning began with John Marshall Harlan II in 1955.[82] Once the committee reports out the nomination, the full Senate considers it. Rejections are relatively uncommon; the Senate has explicitly rejected twelve Supreme Court nominees, most recently Robert Bork, nominated by President Ronald Reagan in 1987.

Although Senate rules do not necessarily allow a negative vote in committee to block a nomination, prior to 2017 a nomination could be blocked by filibuster once debate had begun in the full Senate. President Lyndon B. Johnson's nomination of sitting Associate Justice Abe Fortas to succeed Earl Warren as Chief Justice in 1968 was the first successful filibuster of a Supreme Court nominee. It included both Republican and Democratic senators concerned with Fortas's ethics. President Donald Trump's nomination of Neil Gorsuch to the seat left vacant by Antonin Scalia's death was the second. Unlike the Fortas filibuster, however, only Democratic Senators voted against cloture on the Gorsuch nomination, citing his perceived conservative judicial philosophy, and the Republican majority's prior refusal to take up President Barack Obama's nomination of Merrick Garland to fill the vacancy.[83] This led the Republican majority to change the rules and eliminate the filibuster for Supreme Court nominations.[84]

Not every Supreme Court nominee has received a floor vote in the Senate. A president may withdraw a nomination before an actual confirmation vote occurs, typically because it is clear that the Senate will reject the nominee; this occurred most recently with President George W. Bush's nomination of Harriet Miers in 2006. The Senate may also fail to act on a nomination, which expires at the end of the session. For example, President Dwight Eisenhower's first nomination of John Marshall Harlan II in November 1954 was not acted on by the Senate; Eisenhower re-nominated Harlan in January 1955, and Harlan was confirmed two months later. Most recently, as previously noted, the Senate failed to act on the March 2016 nomination of Merrick Garland; the nomination expired in January 2017, and the vacancy was filled by Neil Gorsuch, an appointee of President Trump.[85]

Once the Senate confirms a nomination, the president must prepare and sign a commission, to which the Seal of the Department of Justice must be affixed, before the new justice can take office.[86] The seniority of an associate justice is based on the commissioning date, not the confirmation or swearing-in date.[87] The importance of commissioning is underscored by the case of Edwin M. Stanton. Although appointed to the court on December 19, 1869, by President Ulysses S. Grant and confirmed by the Senate a few days later, Stanton died on December 24, prior to receiving his commission. He is not, therefore, considered to have been an actual member of the court.

Before 1981, the approval process of justices was usually rapid. From the Truman through Nixon administrations, justices were typically approved within one month. From the Reagan administration to the present, however, the process has taken much longer. Some believe this is because Congress sees justices as playing a more political role than in the past.[88] According to the Congressional Research Service, the average number of days from nomination to final Senate vote since 1975 is 67 days (2.2 months), while the median is 71 days (or 2.3 months).[89][90]

When the Senate is in recess, a president may make temporary appointments to fill vacancies. Recess appointees hold office only until the end of the next Senate session (less than two years). The Senate must confirm the nominee for them to continue serving; of the two chief justices and eleven associate justices who have received recess appointments, only Chief Justice John Rutledge was not subsequently confirmed.[91]

No president since Dwight D. Eisenhower has made a recess appointment to the Court, and the practice has become rare and controversial even in lower federal courts.[92] In 1960, after Eisenhower had made three such appointments, the Senate passed a "sense of the Senate" resolution that recess appointments to the Court should only be made in "unusual circumstances".[93] Such resolutions are not legally binding but are an expression of Congress's views in the hope of guiding executive action.[93][94]

The Supreme Court's 2014 decision in National Labor Relations Board v. Noel Canning limited the ability of the President to make recess appointments (including appointments to the Supreme Court); the Court ruled that the Senate decides when the Senate is in session (or in recess). Writing for the Court, Justice Breyer stated, "We hold that, for purposes of the Recess Appointments Clause, the Senate is in session when it says it is, provided that, under its own rules, it retains the capacity to transact Senate business."[95] This ruling allows the Senate to prevent recess appointments through the use of pro-forma sessions.[96]

The interior of the United States Supreme Court

The Constitution provides that justices "shall hold their offices during good behavior" (unless appointed during a Senate recess). The term "good behavior" is understood to mean justices may serve for the remainder of their lives, unless they are impeached and convicted by Congress, resign, or retire.[97] Only one justice has been impeached by the House of Representatives (Samuel Chase, March 1804), but he was acquitted in the Senate (March 1805).[98] Moves to impeach sitting justices have occurred more recently (for example, William O. Douglas was the subject of hearings twice, in 1953 and again in 1970; and Abe Fortas resigned while hearings were being organized in 1969), but they did not reach a vote in the House. No mechanism exists for removing a justice who is permanently incapacitated by illness or injury, but unable (or unwilling) to resign.[99]

Because justices have indefinite tenure, timing of vacancies can be unpredictable. Sometimes vacancies arise in quick succession, as in the early 1970s when Lewis Franklin Powell, Jr. and William Rehnquist were nominated to replace Hugo Black and John Marshall Harlan II, who retired within a week of each other. Sometimes a great length of time passes between nominations, such as the eleven years between Stephen Breyer's nomination in 1994 to succeed Harry Blackmun and the nomination of John Roberts in 2005 to fill the seat of Sandra Day O'Connor (though Roberts' nomination was withdrawn and resubmitted for the role of chief justice after Rehnquist died).

Despite the variability, all but four presidents have been able to appoint at least one justice. William Henry Harrison died a month after taking office, though his successor (John Tyler) made an appointment during that presidential term. Likewise, Zachary Taylor died 16 months after taking office, but his successor (Millard Fillmore) also made a Supreme Court nomination before the end of that term. Andrew Johnson, who became president after the assassination of Abraham Lincoln, was denied the opportunity to appoint a justice by a reduction in the size of the Court. Jimmy Carter is the only person elected president to have left office after at least one full term without having the opportunity to appoint a justice. Somewhat similarly, presidents James Monroe, Franklin D. Roosevelt, and George W. Bush each served a full term without an opportunity to appoint a justice, but made appointments during their subsequent terms in office. No president who has served more than one full term has gone without at least one opportunity to make an appointment.

The Supreme Court consists of a chief justice, currently John Roberts, and eight associate justices. Among the current members of the Court, Clarence Thomas is the longest-serving justice, with a tenure of 10,474 days (28 years, 247 days) as of June 26, 2020; the most recent justice to join the court is Brett Kavanaugh, whose tenure began on October 6, 2018.

Justice / birthdate and place		Appointed by	SCV	Age at		Start date / length of service	Previous position or office (most recent prior to joining the Court)	Succeeded
				Start	Present
	John Roberts January 27, 1955 Buffalo, New York	G. W. Bush	78–22	50	65	September 29, 2005 14 years, 271 days	Circuit Judge, Court of Appeals for the D.C. Circuit (2003–2005)	Rehnquist
	Clarence Thomas June 23, 1948 Pin Point, Georgia	G. H. W. Bush	52–48	43	72	October 23, 1991 28 years, 247 days	Circuit Judge, Court of Appeals for the D.C. Circuit (1990–1991)	Marshall
	Ruth Bader Ginsburg March 15, 1933 Brooklyn, New York	Clinton	96–3	60	87	August 10, 1993 26 years, 321 days	Circuit Judge, Court of Appeals for the D.C. Circuit (1980–1993)	White
	Stephen Breyer August 15, 1938 San Francisco, California	Clinton	87–9	55	81	August 3, 1994 25 years, 328 days	Chief Judge, Court of Appeals for the First Circuit (1990–1994)	Blackmun
	Samuel Alito April 1, 1950 Trenton, New Jersey	G. W. Bush	58–42	55	70	January 31, 2006 14 years, 147 days	Circuit Judge, Court of Appeals for the Third Circuit (1990–2006)	O'Connor
	Sonia Sotomayor June 25, 1954 The Bronx, New York	Obama	68–31	55	66	August 8, 2009 10 years, 323 days	Circuit Judge, Court of Appeals for the Second Circuit (1998–2009)	Souter
	Elena Kagan April 28, 1960 Manhattan, New York	Obama	63–37	50	60	August 7, 2010 9 years, 326 days	Solicitor General of the United States (2009–2010)	Stevens
	Neil Gorsuch August 29, 1967 Denver, Colorado	Trump	54–45	49	52	April 10, 2017 3 years, 77 days	Circuit Judge, Court of Appeals for the Tenth Circuit (2006–2017)	Scalia
	Brett Kavanaugh February 12, 1965 Washington, D.C.	Trump	50–48	53	55	October 6, 2018 1 year, 264 days	Circuit Judge, Court of Appeals for the D.C. Circuit (2006–2018)	Kennedy
Source: [100]

This graphical timeline depicts the length of each current Supreme Court justice's tenure (not seniority) on the Court:

The Court currently has six male and three female justices. Among the nine justices, there is one African-American (Justice Thomas) and one Hispanic (Justice Sotomayor). Two of the justices were born to at least one immigrant parent: Justice Alito's parents were born in Italy,[101][102] and Justice Ginsburg's father was born in Russia.[103]

At least five justices are Roman Catholics and three are Jewish. It is unclear whether Neil Gorsuch considers himself a Catholic or an Episcopalian.[104] Historically, most justices have been Protestants, including 36 Episcopalians, 19 Presbyterians, 10 Unitarians, 5 Methodists, and 3 Baptists.[105][106] The first Catholic justice was Roger Taney in 1836,[107] and 1916 saw the appointment of the first Jewish justice, Louis Brandeis.[108] In recent years the historical situation has reversed. Most recent justices have been either Catholic or Jewish.

Every current justice has an Ivy League background.[109] Four justices are from the state of New York, and one each is from California, New Jersey, Georgia, Colorado, and Washington, D.C.[110][111] In the 19th century, every justice was a man of Northwestern European descent, and almost always Protestant. Diversity concerns focused on geography, to represent all regions of the country, rather than religious, ethnic, or gender diversity.[112]

The first four female justices: O'Connor, Sotomayor, Ginsburg, and Kagan.

Racial, ethnic, and gender diversity in the Court began to increase in the late 20th century. Thurgood Marshall became the first African-American justice in 1967.[108] Sandra Day O'Connor became the first female justice in 1981.[108] In 1986, Antonin Scalia became the first Italian-American justice. Marshall was succeeded by African-American Clarence Thomas in 1991.[113] O'Connor was joined by Ruth Bader Ginsburg in 1993.[114] After O'Connor's retirement Ginsburg was joined in 2009 by Sonia Sotomayor, the first Hispanic and Latina justice,[108] and in 2010 by Elena Kagan, for a total of four female justices in the Court's history.[114]

There have been six foreign-born justices in the Court's history: James Wilson (1789–1798), born in Caskardy, Scotland; James Iredell (1790–1799), born in Lewes, England; William Paterson (1793–1806), born in County Antrim, Ireland; David Brewer (1889–1910), born to American missionaries in Smyrna, Ottoman Empire (now Izmir, Turkey); George Sutherland (1922–1939), born in Buckinghamshire, England; and Felix Frankfurter (1939–1962), born in Vienna, Austria.[108]

There are currently three living retired justices of the Supreme Court of the United States: Sandra Day O'Connor, Anthony Kennedy, and David Souter. As retired justices, they no longer participate in the work of the Supreme Court, but may be designated for temporary assignments to sit on lower federal courts, usually the United States Courts of Appeals. Such assignments are formally made by the chief justice, on request of the chief judge of the lower court and with the consent of the retired justice. In recent years, Justice O'Connor has sat with several Courts of Appeals around the country, and Justice Souter has frequently sat on the First Circuit, the court of which he was briefly a member before joining the Supreme Court.

The status of a retired justice is analogous to that of a circuit or district court judge who has taken senior status, and eligibility of a supreme court justice to assume retired status (rather than simply resign from the bench) is governed by the same age and service criteria.

In recent times, justices tend to strategically plan their decisions to leave the bench with personal, institutional, ideological, partisan and sometimes even political factors playing a role.[115][116] The fear of mental decline and death often motivates justices to step down. The desire to maximize the Court's strength and legitimacy through one retirement at a time, when the Court is in recess, and during non-presidential election years suggests a concern for institutional health. Finally, especially in recent decades, many justices have timed their departure to coincide with a philosophically compatible president holding office, to ensure that a like-minded successor would be appointed.[117][118]

Justice / Birthdate and place		Appointed by	Retired under	Age at			Tenure
				Start	Retirement	Present	Start date	End date	Length
	Sandra Day O'Connor March 26, 1930 El Paso, Texas	Reagan	G. W. Bush	51	75	90	September 25, 1981	January 31, 2006	24 years, 128 days
	Anthony Kennedy July 23, 1936 Sacramento, California	Reagan	Trump	51	82	83	February 18, 1988	July 31, 2018	30 years, 163 days
	David Souter September 17, 1939 Melrose, Massachusetts	G. H. W. Bush	Obama	51	69	80	October 9, 1990	June 29, 2009	18 years, 263 days
Source: [100]

The current Roberts Court justices (since October 2018):
Front row (left to right): Stephen Breyer, Clarence Thomas, Chief Justice John Roberts, Ruth Bader Ginsburg, and Samuel Alito. Back row (left to right): Neil Gorsuch, Sonia Sotomayor, Elena Kagan, and Brett Kavanaugh.

For the most part, the day-to-day activities of the justices are governed by rules of protocol based upon the seniority of justices. The chief justice always ranks first in the order of precedence—regardless of the length of their service. The associate justices are then ranked by the length of their service. The chief justice sits in the center on the bench, or at the head of the table during conferences. The other justices are seated in order of seniority. The senior-most associate justice sits immediately to the chief justice's right; the second most senior sits immediately to their left. The seats alternate right to left in order of seniority, with the most junior justice occupying the last seat.

During Court sessions, justices sit according to seniority, with the chief justice in the center and associate justices on alternating sides, with the most senior associate justice on the chief justice's immediate right, and the most junior associate justice seated on the left farthest away from the chief justice. Therefore, the current court sits as follows from left to right, from the perspective of those facing the Court: Gorsuch, Sotomayor, Breyer, Thomas (most senior associate justice), Roberts (chief justice), Ginsburg, Alito, Kagan, and Kavanaugh (most junior associate justice). Likewise, when the members of the Court gather for official group photographs, justices are arranged in order of seniority, with the five most senior members seated in the front row in the same order as they would sit during Court sessions, and the four most junior justices standing behind them, again in the same order as they would sit during Court sessions.

In the justices' private conferences, current practice is for them to speak and vote in order of seniority, beginning with the chief justice first and ending with the most junior associate justice. By custom, the most junior associate justice in these conferences is charged with any menial tasks the justices may require as they convene alone, such as answering the door of their conference room, serving beverages and transmitting orders of the court to the clerk.[119] Justice Joseph Story served the longest as junior justice, from February 3, 1812, to September 1, 1823, for a total of 4,228 days. Justice Stephen Breyer follows very closely behind serving from August 3, 1994, to January 31, 2006, for a total of 4,199 days.[120] Justice Elena Kagan comes in at a distant third serving from August 6, 2010, to April 10, 2017, for a total of 2,439 days.

As of 2018, associate justices receive a yearly salary of $255,300 and the chief justice is paid $267,000 per year.[121] Article III, Section 1 of the U.S. Constitution prohibits Congress from reducing the pay for incumbent justices. Once a justice meets age and service requirements, the justice may retire. Judicial pensions are based on the same formula used for federal employees, but a justice's pension, as with other federal courts judges, can never be less than their salary at the time of retirement.

Although justices are nominated by the president in power, justices do not represent or receive official endorsements from political parties, as is accepted practice in the legislative and executive branches. Jurists are, however, informally categorized in legal and political circles as being judicial conservatives, moderates, or liberals. Such leanings, however, generally refer to legal outlook rather than a political or legislative one. The nominations of justices are endorsed by individual politicians in the legislative branch who vote their approval or disapproval of the nominated justice.

Following the confirmation of Brett Kavanaugh in 2018, the Court currently consists of five justices appointed by Republican presidents and four appointed by Democratic presidents. It is popularly accepted that Chief Justice Roberts and associate justices Thomas, Alito, Gorsuch, and Kavanaugh, appointed by Republican presidents, compose the Court's conservative wing. Justices Ginsburg, Breyer, Sotomayor and Kagan, appointed by Democratic presidents, compose the Court's liberal wing. Gorsuch had a track record as a reliably conservative judge in the 10th circuit.[122] Kavanaugh was considered one of the more conservative judges in the DC Circuit prior to his appointment to the Supreme Court.[123][124] Chief Justice Roberts is currently considered the Court's median justice (in the middle of the ideological spectrum, with four justices more liberal and four more conservative than him), making him the ideological center of the Court.[125][126]

Tom Goldstein argued in an article in SCOTUSblog in 2010, that the popular view of the Supreme Court as sharply divided along ideological lines and each side pushing an agenda at every turn is "in significant part a caricature designed to fit certain preconceptions".[127] He pointed out that in the 2009 term, almost half the cases were decided unanimously, and only about 20% were decided by a 5-to-4 vote. Barely one in ten cases involved the narrow liberal/conservative divide (fewer if the cases where Sotomayor recused herself are not included). He also pointed to several cases that defied the popular conception of the ideological lines of the Court.[128] Goldstein further argued that the large number of pro-criminal-defendant summary dismissals (usually cases where the justices decide that the lower courts significantly misapplied precedent and reverse the case without briefing or argument) were an illustration that the conservative justices had not been aggressively ideological. Likewise, Goldstein stated that the critique that the liberal justices are more likely to invalidate acts of Congress, show inadequate deference to the political process, and be disrespectful of precedent, also lacked merit: Thomas has most often called for overruling prior precedent (even if long standing) that he views as having been wrongly decided, and during the 2009 term Scalia and Thomas voted most often to invalidate legislation.

According to statistics compiled by SCOTUSblog, in the twelve terms from 2000 to 2011, an average of 19 of the opinions on major issues (22%) were decided by a 5–4 vote, with an average of 70% of those split opinions decided by a Court divided along the traditionally perceived ideological lines (about 15% of all opinions issued). Over that period, the conservative bloc has been in the majority about 62% of the time that the Court has divided along ideological lines, which represents about 44% of all the 5–4 decisions.[129]

In the October 2010 term, the Court decided 86 cases, including 75 signed opinions and 5 summary reversals (where the Court reverses a lower court without arguments and without issuing an opinion on the case).[130][131] Four were decided with unsigned opinions, two cases affirmed by an equally divided Court, and two cases were dismissed as improvidently granted. Justice Kagan recused herself from 26 of the cases due to her prior role as United States Solicitor General. Of the 80 cases, 38 (about 48%, the highest percentage since the October 2005 term) were decided unanimously (9–0 or 8–0), and 16 decisions were made by a 5–4 vote (about 20%, compared to 18% in the October 2009 term, and 29% in the October 2008 term).[132] However, in fourteen of the sixteen 5–4 decisions, the Court divided along the traditional ideological lines (with Ginsburg, Breyer, Sotomayor, and Kagan on the liberal side, and Roberts, Scalia, Thomas, and Alito on the conservative, and Kennedy providing the "swing vote"). This represents 87% of those 16 cases, the highest rate in the past 10 years. The conservative bloc, joined by Kennedy, formed the majority in 63% of the 5–4 decisions, the highest cohesion rate of that bloc in the Roberts Court.[130][133][134][135][136]

The October 2017 term had a low rate of unanimous rulings, with only 39% of the cases decided by unanimous rulings, the lowest percentage since the October 2008 term when 30% of rulings were unanimous.[137] Chief Justice Roberts was in the majority most often (68 out of 73 cases, or 93.2%), with retiring Justice Anthony Kennedy in second (67 out of 73 cases, or 91.8%); this was typical of the Roberts Court, in which Roberts and Kennedy have been in the majority most frequently in all terms except for the 2013 and 2014 terms (though Kennedy was in the top on both those terms).[138] Justice Sotomayor was the justice least likely to be in the majority (in 50 out of 73 cases, or 68.5%). The highest agreement between justices was between Ginsburg and Sotomayor, who agreed on 95.8% of the cases, followed by Thomas and Alito agreeing on 93% of cases. There were 19 cases that were decided by a 5–4 vote (26% of the total cases); 74% of those cases (14 out of 19) broke along ideological lines, and for the first time in the Roberts Court, all of those resulted in a conservative majority, with Roberts, Kennedy, Thomas, Alito, and Gorsuch on the majority.[138]

The October 2018 term, which saw the replacement of Anthony Kennedy by Brett Kavanaugh, once again saw a low rate of unanimity: only 28 of 71 decided cases were decided by a unanimous court, about 39% of the cases.[139][140] Of these, only 19 cases had the Justices in total agreement. Chief Justice Roberts was once again the justice most often in the majority (61 out of 72 cases, or 85% of the time). Though Kavanaugh had a higher percentage of times in the majority, he did not participate in all cases, voting in the majority 58 out of 64 times, or 91% of the cases in which he participated. Of the justices who participated in all 72 cases, Kagan and Alito tied in second place, voting in the majority 59 out of 72 times (or 82% of the time). Looking only at cases that were not decided unanimously, Roberts and Kavanaugh were the most frequently in the majority (33 cases, with Roberts being in the majority in 75% of the divided cases, and Kavanaugh in 85% of the divided cases he participated in). Of 20 cases that were decided by a vote of 5–4, eight featured the conservative justices in the majority (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh), and eight had the liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) joined by a conservative: Gorsuch was the most frequent, joining them four times, and the remaining conservative justices joining the liberals once each. The remaining 4 cases were decided by different coalitions.[140] The highest agreement between justices was between Roberts and Kavanaugh, who agreed at least in judgement 94% of the time; the second highest agreement was again between Ginsburg and Sotomayor, who agreed 93% of the time. The highest rate of full agreement was between Ginsburg and Kagan (82% of the time), closely followed by Roberts and Alito, Ginsburg and Sotomayor, and Breyer and Kagan (81% of the time). The largest rate of disagreement was between Thomas and both Ginsburg and Sotomayor; Thomas disagreed with each of them 50% of the time.[140]

The United States is divided into thirteen circuit courts of appeals, each of which is assigned a "circuit justice" from the Supreme Court. Although this concept has been in continuous existence throughout the history of the republic, its meaning has changed through time.

Under the Judiciary Act of 1789, each justice was required to "ride circuit", or to travel within the assigned circuit and consider cases alongside local judges. This practice encountered opposition from many justices, who cited the difficulty of travel. Moreover, there was a potential for a conflict of interest on the Court if a justice had previously decided the same case while riding circuit. Circuit riding ended in 1901, when the Circuit Court of Appeals Act was passed, and circuit riding was officially abolished by Congress in 1911.[160]

The circuit justice for each circuit is responsible for dealing with certain types of applications that, under the Court's rules, may be addressed by a single justice. These include applications for emergency stays (including stays of execution in death-penalty cases) and injunctions pursuant to the All Writs Act arising from cases within that circuit, as well as routine requests such as requests for extensions of time. In the past, circuit justices also sometimes ruled on motions for bail in criminal cases, writs of habeas corpus, and applications for writs of error granting permission to appeal. Ordinarily, a justice will resolve such an application by simply endorsing it "granted" or "denied" or entering a standard form of order. However, the justice may elect to write an opinion—referred to as an in-chambers opinion—in such matters if they wish.

A circuit justice may sit as a judge on the Court of Appeals of that circuit, but over the past hundred years, this has rarely occurred. A circuit justice sitting with the Court of Appeals has seniority over the chief judge of the circuit.

The chief justice has traditionally been assigned to the District of Columbia Circuit, the Fourth Circuit (which includes Maryland and Virginia, the states surrounding the District of Columbia), and since it was established, the Federal Circuit. Each associate justice is assigned to one or two judicial circuits.

As of October 19, 2018, the allotment of the justices among the circuits is as follows:[161]

Three of the current justices are assigned to circuits on which they previously sat as circuit judges: Chief Justice Roberts (D.C. Circuit), Justice Breyer (First Circuit), and Justice Alito (Third Circuit).

Nearly all cases come before the court by way of petitions for writs of certiorari, commonly referred to as "cert". The Court may review any case in the federal courts of appeals "by writ of certiorari granted upon the petition of any party to any civil or criminal case".[162] The Court may only review "final judgments rendered by the highest court of a state in which a decision could be had" if those judgments involve a question of federal statutory or constitutional law.[163] The party that appealed to the Court is the petitioner and the non-mover is the respondent. All case names before the Court are styled petitioner v. respondent, regardless of which party initiated the lawsuit in the trial court. For example, criminal prosecutions are brought in the name of the state and against an individual, as in State of Arizona v. Ernesto Miranda. If the defendant is convicted, and his conviction then is affirmed on appeal in the state supreme court, when he petitions for cert the name of the case becomes Miranda v. Arizona.

There are situations where the Court has original jurisdiction, such as when two states have a dispute against each other, or when there is a dispute between the United States and a state. In such instances, a case is filed with the Supreme Court directly. Examples of such cases include United States v. Texas, a case to determine whether a parcel of land belonged to the United States or to Texas, and Virginia v. Tennessee, a case turning on whether an incorrectly drawn boundary between two states can be changed by a state court, and whether the setting of the correct boundary requires Congressional approval. Although it has not happened since 1794 in the case of Georgia v. Brailsford,[164] parties in an action at law in which the Supreme Court has original jurisdiction may request that a jury determine issues of fact.[165] Georgia v. Brailsford remains the only case in which the court has empaneled a jury, in this case a special jury.[166] Two other original jurisdiction cases involve colonial era borders and rights under navigable waters in New Jersey v. Delaware, and water rights between riparian states upstream of navigable waters in Kansas v. Colorado.

A cert petition is voted on at a session of the court called a conference. A conference is a private meeting of the nine Justices by themselves; the public and the Justices' clerks are excluded. The rule of four permits four of the nine justices to grant a writ of certiorari. If it is granted, the case proceeds to the briefing stage; otherwise, the case ends. Except in death penalty cases and other cases in which the Court orders briefing from the respondent, the respondent may, but is not required to, file a response to the cert petition.

The court grants a petition for cert only for "compelling reasons", spelled out in the court's Rule 10. Such reasons include:

• Resolving a conflict in the interpretation of a federal law or a provision of the federal Constitution
• Correcting an egregious departure from the accepted and usual course of judicial proceedings
• Resolving an important question of federal law, or to expressly review a decision of a lower court that conflicts directly with a previous decision of the Court.

When a conflict of interpretations arises from differing interpretations of the same law or constitutional provision issued by different federal circuit courts of appeals, lawyers call this situation a "circuit split". If the court votes to deny a cert petition, as it does in the vast majority of such petitions that come before it, it does so typically without comment. A denial of a cert petition is not a judgment on the merits of a case, and the decision of the lower court stands as the case's final ruling.

To manage the high volume of cert petitions received by the Court each year (of the more than 7,000 petitions the Court receives each year, it will usually request briefing and hear oral argument in 100 or fewer), the Court employs an internal case management tool known as the "cert pool". Currently, all justices except for Justices Alito and Gorsuch participate in the cert pool.[167][168][169][170]

Seth P. Waxman at oral argument presents his case and answers questions from the justices.

When the Court grants a cert petition, the case is set for oral argument. Both parties will file briefs on the merits of the case, as distinct from the reasons they may have argued for granting or denying the cert petition. With the consent of the parties or approval of the Court, amici curiae, or "friends of the court", may also file briefs. The Court holds two-week oral argument sessions each month from October through April. Each side has thirty minutes to present its argument (the Court may choose to give more time, though this is rare),[171] and during that time, the Justices may interrupt the advocate and ask questions. The petitioner gives the first presentation, and may reserve some time to rebut the respondent's arguments after the respondent has concluded. Amici curiae may also present oral argument on behalf of one party if that party agrees. The Court advises counsel to assume that the Justices are familiar with and have read the briefs filed in a case.

In order to plead before the court, an attorney must first be admitted to the court's bar. Approximately 4,000 lawyers join the bar each year. The bar contains an estimated 230,000 members. In reality, pleading is limited to several hundred attorneys. The rest join for a one-time fee of $200, earning the court about $750,000 annually. Attorneys can be admitted as either individuals or as groups. The group admission is held before the current justices of the Supreme Court, wherein the chief justice approves a motion to admit the new attorneys.[172] Lawyers commonly apply for the cosmetic value of a certificate to display in their office or on their resume. They also receive access to better seating if they wish to attend an oral argument.[173] Members of the Supreme Court Bar are also granted access to the collections of the Supreme Court Library.[174]

At the conclusion of oral argument, the case is submitted for decision. Cases are decided by majority vote of the Justices. It is the Court's practice to issue decisions in all cases argued in a particular term by the end of that term. Within that term, however, the Court is under no obligation to release a decision within any set time after oral argument. At the conclusion of oral argument, the Justices retire to another conference at which the preliminary votes are tallied, and the most senior Justice in the majority assigns the initial draft of the Court's opinion to a Justice on his or her side. Drafts of the Court's opinion, as well as any concurring or dissenting opinions,[175] circulate among the Justices until the Court is prepared to announce the judgment in a particular case. Since recording devices are banned inside the courtroom of the United States Supreme Court Building, the delivery of the decision to the media is done via paper copies and is known as the Running of the Interns.[176][177]

It is possible that, through recusals or vacancies, the Court divides evenly on a case. If that occurs, then the decision of the court below is affirmed, but does not establish binding precedent. In effect, it results in a return to the status quo ante. For a case to be heard, there must be a quorum of at least six justices.[178] If a quorum is not available to hear a case and a majority of qualified justices believes that the case cannot be heard and determined in the next term, then the judgment of the court below is affirmed as if the Court had been evenly divided. For cases brought to the Supreme Court by direct appeal from a United States District Court, the chief justice may order the case remanded to the appropriate U.S. Court of Appeals for a final decision there.[179] This has only occurred once in U.S. history, in the case of United States v. Alcoa (1945).[180]

The Court's opinions are published in three stages. First, a slip opinion is made available on the Court's web site and through other outlets. Next, several opinions and lists of the court's orders are bound together in paperback form, called a preliminary print of United States Reports, the official series of books in which the final version of the Court's opinions appears. About a year after the preliminary prints are issued, a final bound volume of U.S. Reports is issued. The individual volumes of U.S. Reports are numbered so that users may cite this set of reports (or a competing version published by another commercial legal publisher but containing parallel citations) to allow those who read their pleadings and other briefs to find the cases quickly and easily.

As of January 2019, there are:

• Final bound volumes of U.S. Reports: 569 volumes, covering cases through June 13, 2013 (part of the October 2012 term).[181][182]
• Slip opinions: 21 volumes (565–585 for 2011–2017 terms, three two-part volumes each), plus part 1 of volume 586 (2018 term).[183]

As of March 2012, the U.S. Reports have published a total of 30,161 Supreme Court opinions, covering the decisions handed down from February 1790 to March 2012. This figure does not reflect the number of cases the Court has taken up, as several cases can be addressed by a single opinion (see, for example, Parents v. Seattle, where Meredith v. Jefferson County Board of Education was also decided in the same opinion; by a similar logic, Miranda v. Arizona actually decided not only Miranda but also three other cases: Vignera v. New York, Westover v. United States, and California v. Stewart). A more unusual example is The Telephone Cases, which are a single set of interlinked opinions that take up the entire 126th volume of the U.S. Reports.

Opinions are also collected and published in two unofficial, parallel reporters: Supreme Court Reporter, published by West (now a part of Thomson Reuters), and United States Supreme Court Reports, Lawyers' Edition (simply known as Lawyers' Edition), published by LexisNexis. In court documents, legal periodicals and other legal media, case citations generally contain cites from each of the three reporters; for example, citation to Citizens United v. Federal Election Commission is presented as Citizens United v. Federal Election Com'n, 585 U.S. 50, 130 S. Ct. 876, 175 L. Ed. 2d 753 (2010), with "S. Ct." representing the Supreme Court Reporter, and "L. Ed." representing the Lawyers' Edition.[184][185]

Lawyers use an abbreviated format to cite cases, in the form "vol U.S. page, pin (year)", where vol is the volume number, page is the page number on which the opinion begins, and year is the year in which the case was decided. Optionally, pin is used to "pinpoint" to a specific page number within the opinion. For instance, the citation for Roe v. Wade is 410 U.S. 113 (1973), which means the case was decided in 1973 and appears on page 113 of volume 410 of U.S. Reports. For opinions or orders that have not yet been published in the preliminary print, the volume and page numbers may be replaced with "___".

Clerks hired by each of the justices of the Supreme Court are often given considerable leeway in the opinions they draft. "Supreme Court clerkship appeared to be a nonpartisan institution from the 1940s into the 1980s," according to a study published in 2009 by the law review of Vanderbilt University Law School.[195][196] "As law has moved closer to mere politics, political affiliations have naturally and predictably become proxies for the different political agendas that have been pressed in and through the courts," former federal court of appeals judge J. Michael Luttig said.[195] David J. Garrow, professor of history at the University of Cambridge, stated that the Court had thus begun to mirror the political branches of government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives," Professor Garrow said. "Each side is putting forward only ideological purists."[195]

According to the Vanderbilt Law Review study, this politicized hiring trend reinforces the impression that the Supreme Court is "a superlegislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law".[195] A poll conducted in June 2012 by The New York Times and CBS News showed just 44% of Americans approve of the job the Supreme Court is doing. Three-quarters said justices' decisions are sometimes influenced by their political or personal views.[197]

The Supreme Court has been criticized for not keeping within Constitutional bounds by engaging in judicial activism, rather than merely interpreting law and exercising judicial restraint. Claims of judicial activism are not confined to any particular ideology.[198] An often cited example of conservative judicial activism is the 1905 decision in Lochner v. New York, which has been criticized by many prominent thinkers, including Robert Bork, Justice Antonin Scalia, and Chief Justice John Roberts,[198][199] and which was reversed in the 1930s.[200][201][202]

An often cited example of liberal judicial activism is Roe v. Wade (1973), which legalized abortion on the basis of the "right to privacy" inferred from the Fourteenth Amendment, a reasoning that some critics argued was circuitous.[198] Legal scholars,[203][204] justices,[205] and presidential candidates[206] have criticized the Roe decision. The progressive Brown v. Board of Education decision has been criticized by conservatives such as Patrick Buchanan[207] and former presidential contender Barry Goldwater.[208]

More recently, Citizens United v. Federal Election Commission was criticized for expanding upon the precedent in First National Bank of Boston v. Bellotti (1978) that the First Amendment applies to corporations.[209] President Abraham Lincoln warned, referring to the Dred Scott decision, that if government policy became "irrevocably fixed by decisions of the Supreme Court...the people will have ceased to be their own rulers."[210] Former justice Thurgood Marshall justified judicial activism with these words: "You do what you think is right and let the law catch up."[211]

During different historical periods, the Court has leaned in different directions.[212][213] Critics from both sides complain that activist-judges abandon the Constitution and substitute their own views instead.[214][215][216] Critics include writers such as Andrew Napolitano,[217] Phyllis Schlafly,[218] Mark R. Levin,[219] Mark I. Sutherland,[220] and James MacGregor Burns.[221][222] Past presidents from both parties have attacked judicial activism, including Franklin D. Roosevelt, Richard Nixon, and Ronald Reagan.[223][224] Failed Supreme Court nominee Robert Bork wrote: "What judges have wrought is a coup d'état, – slow-moving and genteel, but a coup d'état nonetheless."[225] Former senator Al Franken quipped that when politicians talk about judicial activism, "their definition of an activist judge is one who votes differently than they would like."[226] Brian Leiter wrote that "Given the complexity of the law and the complexity involved in saying what really happened in a given dispute, all judges, and especially those on the Supreme Court, often have to exercise a quasi-legislative power," and "Supreme Court nominations are controversial because the court is a super-legislature, and because its moral and political judgments are controversial."[227]

Court decisions have been criticized for failing to protect individual rights: the Dred Scott (1857) decision upheld slavery;[228] Plessy v Ferguson (1896) upheld segregation under the doctrine of separate but equal;[229] Kelo v. City of New London (2005) was criticized by prominent politicians, including New Jersey governor Jon Corzine, as undermining property rights.[230][231] Some critics suggest the 2009 bench with a conservative majority has "become increasingly hostile to voters" by siding with Indiana's voter identification laws which tend to "disenfranchise large numbers of people without driver's licenses, especially poor and minority voters", according to one report.[232] Senator Al Franken criticized the Court for "eroding individual rights".[226] However, others argue that the Court is too protective of some individual rights, particularly those of people accused of crimes or in detention. For example, Chief Justice Warren Burger was an outspoken critic of the exclusionary rule, and Justice Scalia criticized the Court's decision in Boumediene v. Bush for being too protective of the rights of Guantanamo detainees, on the grounds that habeas corpus was "limited" to sovereign territory.[233]

This criticism is related to complaints about judicial activism. George Will wrote that the Court has an "increasingly central role in American governance".[234] It was criticized for intervening in bankruptcy proceedings regarding ailing carmaker Chrysler Corporation in 2009.[235] A reporter wrote that "Justice Ruth Bader Ginsburg's intervention in the Chrysler bankruptcy" left open the "possibility of further judicial review" but argued overall that the intervention was a proper use of Supreme Court power to check the executive branch.[235] Warren E. Burger, before becoming Chief Justice, argued that since the Supreme Court has such "unreviewable power" it is likely to "self-indulge itself" and unlikely to "engage in dispassionate analysis".[236] Larry Sabato wrote "excessive authority has accrued to the federal courts, especially the Supreme Court."[237]

British constitutional scholar Adam Tomkins sees flaws in the American system of having courts (and specifically the Supreme Court) act as checks on the Executive and Legislative branches; he argues that because the courts must wait, sometimes for years, for cases to navigate their way through the system, their ability to restrain other branches is severely weakened.[238][239] In contrast, other countries have dedicated Constitutionals Courts that have original jurisdiction on constitutional claims brought by persons or political institutions; for example, the Federal Constitutional Court of Germany, which can declare a law unconstitutional when challenged.

There has been debate throughout American history about the boundary between federal and state power. While Framers such as James Madison[240] and Alexander Hamilton[241] argued in The Federalist Papers that their then-proposed Constitution would not infringe on the power of state governments,[242][243][244][245] others argue that expansive federal power is good and consistent with the Framers' wishes.[246] The Tenth Amendment to the United States Constitution explicitly grants "powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

The Court has been criticized for giving the federal government too much power to interfere with state authority. One criticism is that it has allowed the federal government to misuse the Commerce Clause by upholding regulations and legislation which have little to do with interstate commerce, but that were enacted under the guise of regulating interstate commerce; and by voiding state legislation for allegedly interfering with interstate commerce. For example, the Commerce Clause was used by the Fifth Circuit Court of Appeals to uphold the Endangered Species Act, thus protecting six endemic species of insect near Austin, Texas, despite the fact that the insects had no commercial value and did not travel across state lines; the Supreme Court let that ruling stand without comment in 2005.[247] Chief Justice John Marshall asserted Congress's power over interstate commerce was "complete in itself, may be exercised to its utmost extent, and acknowledges no limitations, other than are prescribed in the Constitution".[248] Justice Alito said congressional authority under the Commerce Clause is "quite broad".[249] Modern day theorist Robert B. Reich suggests debate over the Commerce Clause continues today.[248]

Advocates of states' rights such as constitutional scholar Kevin Gutzman have also criticized the Court, saying it has misused the Fourteenth Amendment to undermine state authority. Justice Brandeis, in arguing for allowing the states to operate without federal interference, suggested that states should be laboratories of democracy.[250] One critic wrote "the great majority of Supreme Court rulings of unconstitutionality involve state, not federal, law."[251] However, others see the Fourteenth Amendment as a positive force that extends "protection of those rights and guarantees to the state level".[252] More recently, the issue of federal power is central in the prosecution of Gamble v. United States, which is examining the doctrine of "separate sovereigns", whereby a criminal defendant can be prosecuted by a state court and then by a federal court.[253][254]

The Court has been criticized for keeping its deliberations hidden from public view.[255] According to a review of Jeffrey Toobin's 2007 expose The Nine: Inside the Secret World of the Supreme Court; "Its inner workings are difficult for reporters to cover, like a closed 'cartel', only revealing itself through 'public events and printed releases, with nothing about its inner workings.'"[256] The reviewer writes: "few (reporters) dig deeply into court affairs. It all works very neatly; the only ones hurt are the American people, who know little about nine individuals with enormous power over their lives."[256] Larry Sabato complains about the Court's "insularity".[237] A Fairleigh Dickinson University poll conducted in 2010 found that 61% of American voters agreed that televising Court hearings would "be good for democracy", and 50% of voters stated they would watch Court proceedings if they were televised.[257][258] More recently, several justices have appeared on television, written books and made public statements to journalists.[259][260] In a 2009 interview on C-SPAN, journalists Joan Biskupic (of USA Today) and Lyle Denniston (of SCOTUSblog) argued that the Court is a "very open" institution with only the justices' private conferences inaccessible to others.[259] In October 2010, the Court began the practice of posting on its website recordings and transcripts of oral arguments on the Friday after they occur.

Some Court decisions have been criticized for injecting the Court into the political arena, and deciding questions that are the purview of the other two branches of government. The Bush v. Gore decision, in which the Supreme Court intervened in the 2000 presidential election and effectively chose George W. Bush over Al Gore, has been criticized extensively, particularly by liberals.[256][261][262][263][264][265] Another example are Court decisions on apportionment and re-districting: in Baker v. Carr, the court decided it could rule on apportionment questions; Justice Frankfurter in a "scathing dissent" argued against the court wading into so-called political questions.[266]

Senator Arlen Specter said the Court should "decide more cases".[226] On the other hand, although Justice Scalia acknowledged in a 2009 interview that the number of cases that the Court heard then was smaller than when he first joined the Supreme Court, he also stated that he had not changed his standards for deciding whether to review a case, nor did he believe his colleagues had changed their standards. He attributed the high volume of cases in the late 1980s, at least in part, to an earlier flurry of new federal legislation that was making its way through the courts.[259]

Critic Larry Sabato wrote: "The insularity of lifetime tenure, combined with the appointments of relatively young attorneys who give long service on the bench, produces senior judges representing the views of past generations better than views of the current day."[237] Sanford Levinson has been critical of justices who stayed in office despite medical deterioration based on longevity.[267] James MacGregor Burns stated lifelong tenure has "produced a critical time lag, with the Supreme Court institutionally almost always behind the times".[221] Proposals to solve these problems include term limits for justices, as proposed by Levinson[268] and Sabato[237][269] as well as a mandatory retirement age proposed by Richard Epstein,[270] among others.[271] However, others suggest lifetime tenure brings substantial benefits, such as impartiality and freedom from political pressure. Alexander Hamilton in Federalist 78 wrote "nothing can contribute so much to its firmness and independence as permanency in office."[272]

The 21st century has seen increased scrutiny of justices accepting expensive gifts and travel. All of the members of the Roberts Court have accepted travel or gifts.[273] In 2012, Justice Sonia Sotomayor received $1.9 million in advances from her publisher Knopf Doubleday.[274] Justice Scalia and others took dozens of expensive trips to exotic locations paid for by private donors.[275] Private events sponsored by partisan groups that are attended by both the justices and those who have an interest in their decisions have raised concerns about access and inappropriate communications.[276] Stephen Spaulding, the legal director at Common Cause, said: "There are fair questions raised by some of these trips about their commitment to being impartial."[275]