U.S. Supreme Court





The United States’ Supreme Court is the highest court in the nation. It was established with the passing of the U.S. Constitution. Charged with providing balanced justice, the framers decided that the justices of this Court would be appointed for life. The intention was to prevent party affiliations and affections which could cloud judgment. In addition, the Supreme Court would also be the final arbiter in matters whereby the Legislative or Executive Powers overstep their authority.

Why Should Students of Criminal Justice Everywhere be Interested in the Workings of the United States Supreme Court?

American students of criminal justice and criminal law naturally have an interest in the workings of the United States Supreme Court. This is partly because the decisions made have a direct impact on how we perform our duties.

What has come to be called the Miranda Warning is an excellent example.

The Miranda Warning is a statement of rights for an accused person. It stemmed from a case (Miranda v. Arizona) heard by the United States Supreme Court in 1966. The issue raised in Miranda v. Arizona was whether a suspects 5th Amendment rights had been violated. This is the right to avoid self-incrimination.

After the United States adopted the Miranda Warning (or statement), other Constitutional governments around the world followed suit. This attests to the wisdom of the U.S. Supreme Court under Chief Justice Earl Warren. For instance, the warning Australia adopted reads,

“You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?”

In fact, numerous other nations have adopted what has come to be called the right to silence. Some of these include:

As illustrated by the Miranda Warning (Right to Silence), when the U. S. Supreme Court makes a ruling, other nations tend to take notice. However, something odd occurs here. In cases where the Court leans liberal as regards civil rights and criminal procedure, democratic nations follow suit. When this court leans conservative, despotic governments tend to immitate the decision.

The United States Supreme Court through the Years

Part of the concept in appointing justices for life was so that the Supreme Court could rise above politics. For the most part, the Court has done this admirably, though not always.

Earl Warren; Governor of California and Chief ...
Earl Warren; Governor of California and Chief Justice of the United States. (Photo credit: Wikipedia)

In 1966, the Chief Justice was Earl Warren. He had been appointed under President Dwight D Eisenhower. Warren was a conservative-leaning justice, but was also a strong Constitutionalist. Half of the appointed justices on the 1966 Court had been appointed by either Roosevelt or Truman; two had been appointed under Eisenhower while Warren was Chief Justice.  This mix, however, seemed to work well and the court rendered a number of sweeping reform decisions under Earl Warren. Many of these reforms centered on criminal procedure and civil rights under the Constitution.

Passing the mantle to Warren Burger in 1969, the new Chief Justice proved to be a strong advocate for the Constitution as well. In fact, he demonstrated that he could rise above politics when he was required to rule on matters related to the Impeachment process involving Richard M. Nixon, who had appointed him to the bench. Overall, the Burger Court added further clarification to many of the decisions under the Warren Court.

In the process, the U.S. Supreme Court strengthened the balance between police powers and the public good via careful interpretations of the Constitution. However, it was not to last.

The Scales of Justice Tip in Both Directions

Justice is often illustrated by a set of scales. In the ideal, the scales will balance, but this is seldom the case. The fact is that justice tends to lean either conservative or liberal. In other words, the scales of justice tend to either be tilted in favor of or against a defendant. When the scales are “liberal leaning,” justice is erring on the side of caution as in “innocent until proven guilty.” When the scales lean more conservative, the expression could more rightly be rephrased as “guilty until proven innocent.”

English: Chief Justice Warren Burger Source: h...
English: Chief Justice Warren Burger Source: http://www.supremecourthistory.org (Photo credit: Wikipedia)

A clear delineation of this shift came after Chief Justice Warren Burger resigned his seat in 1986. Ronald Reagan then appointed the very conservative-minded, tow-the-party-line William Rehnquist as Chief Justice of the Supreme Court.

Rehnquist  quickly became known as a rubber-stamp Chief Justice, holding to party line at all times. During the ensuing “get tough” period of the criminal justice system in America, Rehnquist played his role perfectly. He slowly dismantled much of what the Warren and Burger Courts had built. Where the Warren Court leaned too far to the left and the Burger Court brought it back to center, the Rehnquist Court largely moved in the opposite direction.




This illustates how the U.S. Supreme Court, despite an attempt to prevent partisanship via lifetime appointments, is still swayed by party affiliations.

Balance in the Court?

With the passing William Rehnquist in 2005, President George W. Bush appointed John G. Roberts to the Chief Justice seat. Congress approved the unusual appointment. It was unusual because Roberts was not already a member of the Court. Generally, the appointee was already a seated Supreme Court Justice which is then elevated to the Chief Justice seat. Roberts was a complete outsider.

Official 2005 photo of Chief Justice John G. R...
Official 2005 photo of Chief Justice John G. Roberts (Photo credit: Wikipedia)

As Chief Justice, John Roberts has been very different from his contemporaries. He leans more liberal in matters of civil rights than predecessors, yet just as conservative in criminal procedure. He also breaks with his party (Republican) in matters of taxation, federalism, and labor disputes. However, he leans to the conservative side in issues related to commercial activities and the First Amendment.

For instance, in 2010 the United States Supreme Court was called upon to revisit the Miranda case via Berghuis v. Thompkins. In that case, the question was whether a person who, having previously invoked Miranda rights (that is, their 5th Amendment right to silence), can then expect subsequent speech to be protected if they then begin to answer questions.

The U.S. Supreme Court under Chief Justice Roberts ruled that if a person had invoked their right to silence, they must remain silent. If they then decide to answer questions, whatever is said can be used. In other words, there can be no flip-flopping by a defendant. One may not cherry-pick what is said or not said. Thus, there is balance in this decision because in recent years, some defendants have “gotten off on technicalities.” One such “technicality” is such flip-flopping, playing police interrogators as if the process was merely a game.

The Berghuis v. Thompkins decision eliminates that loophole. It holds both criminal justice professionals and suspects accountable to the same standards.

To a large extent though, Democrats on the bench tend to vote their party as do Republicans. Since Roberts took the Chief Justice seat, there appears to be more balance in the U.S. Supreme Court than in previous eras. Yet, research by Michael A. Bailey of Georgetown University demonstrates otherwise.

graph_of_bailey_scores_of_supreme_court_justices_1950-2011
As shown in data collected and plotted by researcher Professor Michael A. Bailey of Georgetown University in 2012, the ideological leanings of the United States Supreme Court is far from liberal. That is, the Court remains strongly opposed to defendant rights.

The Death of Antonin Scalia Highlighted Serious Issues Related to the Ideology of the Supreme Court

After the death of justice Antonin Scalia on February 13, 2016, the nation began to see some of the issues which have been festering for decades. The Conservative-leaning 114th Congress opposed virtually every move on the part of the Liberal-leaning Obama Presidency. A stalemate had developed in Washington, DC which was at times resolved by the Supreme Court.

With the conservative Scalia gone, the court had eight members. For the first time in decades, the potential to have the Supreme Court move back to center or even more in favor of defendant rights seemed possible. However, Congress refused to even entertain any appointments by the Obama Administration. Instead, the 114th Congress, in partisan fashion, chose instead to not choose. Rather than do their job, these impotent law-makers chose to leave the decision to the next President to be elected the same year.

This demonstrates just how clearly partisan the U.S. Supreme Court had become. If that were not the case, there would have been no reason to avoid an appointment. But because conservatives fear a return to liberal policies on the part of the Court, the conservative 114th Congress refused to do its job in the hope of getting a Republican (conservative) President.

Do We Know Where We’re Going To?

The United States Supreme Court was not supposed to be partisan. It was intended to rise above such petty differences. Yet, clearly it has failed in this respect. The death of Antonin Scalia in 2016 demonstrated this all to well.

U.S. Supreme Court building.
U.S. Supreme Court building. (Photo credit: Wikipedia). Is it too much to expect the United States Supreme Court to transcend politics. Can it?

The Supreme Court which has often overturned decisions from one generation to the next. By comparing the makeup of the Court over time with to the Presidents who made the key appointments, we can see that much of the politics follows a distinct pattern. The pattern is one of leaving the noble ideal of “innocent until proven guilty” to one of, “Who cares if we convict an innocent as long as we get all the guilty?”

In one generation, a stance of getting tough with crime and criminals appears. The next generation softens a bit, at times too much. This in turn yields a generation which toughens, usually very much. This yields to another generation softening a bit. Strangely, the softening is much less than the toughening such that slowly, over time, the nation is much further away from defendent and civil rights than at the start.

This Pattern of Flip-Flopping is shown up in the research conducted by Michael Bailey as illustrated in the graph above.

This trend of flip-flopping, yet ultimately leaning further away from both civil and defendant rights also seems to follow the pattern of Presidential elections. The United States tends to flip-flop between parties with nearly every other election.

Although the idea in the Constitution was for the United State Supreme Court to transcend politics, it appears that this has largely failed. Perhaps this is inevitable. Perhaps there will never be a Supreme Court which can fully transcend politics. If this is the case, the best which can be expected is for the scales to resemble a teeter-totter rather than a set of scales.

If the governing body which has the best chance to rise above politics cannot do so, then perhaps doing so is simply not possible.

Students of criminal justice and constitutional law/rights around the world are watching. If the United States cannot transcend politics in its highest court, perhaps another nation can. If so, that nation may ultimately rise above the U.S. on the world scene because no nation can stand if divided against itself, not even America.

For an excellent interactive chart of the Court from 1946 to 2016, visit Ideological Leanings of U.S. Supreme Court Justices at Wikipedia. This chart is based on the research conducted by Mr. Bailey and the basis for the research is provided.

The Makeup and Presidential Appointments of U.S. Supreme Court Justices

Following is a chart showing the United States Supreme Court from its inception through 2016. Along the left are the Presidents which were presiding at the time of all courts. This allow anyone studying the matter to easily see under which President each justice was appointed. Also, the chart is color-coded according to Party affiliations in the case of the Presidents. This permits following the history of the Chief Justice during each Associate Justice appointment.

This chart can be downloaded in XL spreadsheet format using either the link to the lower left or the expansion window in the upper right (Google Docs). We hope you find this chart of the United States Supreme Court useful.

To Download this chart, click on us-supreme-court. The spreadsheet may be accessed using MSExcel. Or, it may be viewed below using Google Docs.





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