Okay, But Why Do Nine People Get to Decide Our Rights?
The Supreme Court gets to make decisions that affect our most fundamental rights. When it ruled on Roe v. Wade in 1973 and then overturned that ruling in 2022, it determined our ability to access reproductive care. When it ruled on Plessy v. Ferguson in 1896, it created the racist law of “separate but equal,” and when it overturned Plessy in 1954 with their ruling on Brown v. Board of Education, public schools across the country were opened to all students, regardless of race. And in 2015, their ruling on Obergefell v. Hodges gave same-sex couples the right to marry the person they love.
The Supreme Court works in some ways like any other court of law, like divorce court or criminal court, where two people (or groups) face off against each other, each hoping for justice. But the Supreme Court only rules on a few of the most special or high-stakes cases. Sometimes they hear cases that involve the government directly, like lawsuits between states or cases that involve U.S. ambassadors.
Why do nine people have the power to make these incredibly important decisions? And why are some people worried about whether current Supreme Court justices are making decisions that are bad for the American people?
The Noble Nine
Justices on the Supreme Court are appointed by the President and approved by Congress. It’s a lifetime position, meaning that once they’re approved, they can serve until they die, they decide to retire, or they’re impeached (which has only happened once, in 1805). The Court is currently made up of nine Justices: Chief Justice John Roberts, Jr., and Associate Justices Clarence Thomas, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh, Amy Coney Barrett, and Ketanji Brown Jackson.
Collection of the Supreme Court of the United States.
They’re basically the legal experts on what’s constitutional in America. They have what’s called “plenary authority,” which just means they’re allowed to hear or not hear whatever cases they want. They get about 10,000 requests each year and end up ruling on about 80 cases.
But the Court didn’t always have nine Justices. It started as six, back when it was originally established by the very first Congress in 1789. The Constitution allows Congress to decide how to organize it, and in 1869 they raised the number of Justices to nine. It remains that way to this day.
Although technically anyone can be nominated by the President, Justices are almost always lawyers, judges, or other experts in the legal system. But it’s also been a long road to equality for Justices who are women or people of color. Thurgood Marshall became our nation’s first Black Supreme Court justice in 1967, and Sandra Day O’Connor became the first woman on the Supreme Court in 1981.
There have only ever been six total women on the Supreme Court throughout our history, and four are currently on the Court right now: Sonia Sotomayor, Elena Kagan, Amy Coney Barrett, and Ketanji Brown Jackson. And other than Thurgood Marshall, there’s only been one other Black man to be a Supreme Court Justice: Clarence Thomas.
Are Supreme Court Justices Really Impartial?
The Justices are supposed to be impartial, voting according to their legal experience and their interpretation of the Constitution, but since they’re appointed by Presidents, they usually end up voting along party lines – Democrat or Republican.
Ideologically, our current Court leans conservative, with six Justices appointed by Republican Presidents and three appointed by Democrats. Justices Samuel Alito and Clarence Thomas are considered the most conservative, ruling according to values held by Republicans – and, lately, Donald Trump specifically. The Court almost certainly wouldn’t have overturned Roe v. Wade, for example, if we had a more even balance of liberal and conservative Justices.
And last year, in Trump v. The United States, they ruled that presidents are immune from criminal charges for any “official acts” they made while in office.
This isn’t to say that every single Supreme Court ruling is decided along political lines. Some end up splitting along other lines, and some even end up unanimous. But you can see why people are worried that the Supreme Court may not be as impartial and apolitical as they claim to be.
And there’s more evidence too. In 2021, Justice Alito flew an upside-down American flag in front of his house, a symbol used by extremists who wouldn’t accept that President Biden won the 2020 election. It was carried by lots of people who stormed the capitol on January 6th. And yet, despite this obvious political statement, Justice Alito refused to recuse himself from cases that involved Trump, including cases about January 6th itself. Recuse just means removing yourself from a case because you can’t be impartial. Despite being clearly biased, Alito ruled that a January 6th rioter couldn’t be charged with obstruction of justice and that Trump was immune from criminal charges.
There are concerns about the ethics of Justice Clarence Thomas too. A Senate investigation showed that he’s accepted gifts and special privileges from billionaire Republican donor Harlan Crow, like private jet trips, private school tuition for a relative, and luxurious vacations.
Who Holds the Supreme Court Accountable?
In 1969, the United States Judicial Conference issued a code of ethics which forbids all federal judges from accepting fees, gifts, or compensation of any kind for all bench activities, except for the Supreme Court. So we shouldn’t be surprised that we have a Justice accepting millions of dollars’ worth of gifts from a Republican mega-donor, right as he’s ruling on cases like Roe v. Wade and Trump v. The United States. As far as historians can tell, the extent and frequency of these gifts has never happened before in the modern history of the Supreme Court.
Some Important Supreme Court Rulings from the Last Term
United States v. Skrmetti. The Supreme Court ruled that Tennessee’s ban on gender-affirming care can remain in place, which means that similar bans in other states are likely to stay in place too.
United States v. Texas. The Supreme Court ruled that federal courts don’t have authority to issue nationwide decrees like the one blocking Trump’s executive order on birthright citizenship. They said that courts can only rule on behalf of people in the district it serves.
Medina v. Planned Parenthood South Atlantic. The Supreme Court ruled that Medicaid patients can’t sue over being denied access to specific providers, even though the Medicaid Act specifically says that patients are free to choose their provider.
What Congress — and you — can decide!
Congress has the power to change the way that the Supreme Court works. It can pass legislation to define a code of ethics, to change the number of Justices there are, and even whether they should have lifetime appointments. That means you have the power to influence the Supreme Court just by voting and by talking to the people in your life about who they vote for. We deserve to know if these decisions are being inspired by a deep understanding of the Constitution… or a million-dollar vacation to Bali.