SCOTUS: The Balance of the Court and Upcoming Decisions

Quibbl Politics Editor Andrew P. Kingsbury delves into everything you ever wanted to know about the Supreme Court: its purpose, its impact, the balance of the court, aging justices, and MAJOR upcoming decisions, on which you can make predictions (of course). Sit back, relax, and let this cup of judicial java permeate your mindhole.

By Andrew P. Kingsbury

The Purpose of the Court

Article III, Section I of the United States’ Constitution states (verbatim) “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

Also under the Supreme Court’s purview are cases “affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction” (Article III, Section II).

The Impact of the Court

The Supreme Courts being endowed with its immense power started with a landmark case with which every law student is familiar: Marbury v. Madison.

Without going into too much detail: at the end of his presidential term, John Adams (of the Federalist party) rapidly appointed several new judges right before Thomas Jefferson (of the Democratic-Republican party) was set to take office in March of 1801, so that the Federalist party would maintain some judicial power. Adams’s lame-duck Congress went as far as to pass legislation creating brand new judgeships for Adams to fill. One of those “midnight appointments” was a Federalist Party member named William Marbury. Upon taking office, Jefferson instructed James Madison, his Secretary of State to not commission Marbury. According to Encyclopaedia Brittanica, a infuriated “Marbury petitioned the Supreme Court to” force Madison to commission him as a judge.

The Supreme Court’s Chief Justice John Marshall ruled in favor of Marbury and established the precedent and power known as judicial review. Judicial review allows the Supreme Court to have the final say in examining “the actions of the legislative, executive, and administrative arms of government and to determine whether such actions are consistent with the [Constitution].”

justice john marshall
Statue of Fourth Chief Justice of the Supreme Curt John Marshall (also one of the Founding Fathers)

It is through the power of judicial review that the Supreme Court has its power as coequal branch of government, thus allowing it to make the landmark decisions that affect the everyday lives of all Americans. Landmark decisions like Roe v. Wade, Plessy v. Ferguson,  and Brown v. Board of Education, which have had vast, sweeping impacts on the direction of American society about abortion, “separate but equal”, and ending segregation in public schools.

Another major power the Supreme Courts (and courts in general) has is the power of precedent. When a court, especially the Supreme Court, makes a decision, the decision becomes a precedent that judges refer to in future court cases to make rulings, this happens quite often. Although it happens rarely, judges can strike down a precedent which plaintiffs or defendants can appeal all the way up to the Supreme Court; again, this is quite rare.

Read More about Landmark SCOTUS Cases:
The Importance of Marbury v. Madison (Campaign for Liberty, February, 2012)
The 21 Most Famous Supreme Court Decisions (USA Today, Richard Wolf June 2015)
Supreme Court Landmarks (


The Balance of the Court

Originalists vs Living Constitution

Another key component of the Supreme Court is how justices (and the presidents who appoint them) interpret the Constitution.

Currently, there are two camps for interpretation of the Constitution: the Originalists and those believe the Constitution is a living document.

Originalists believe that the Constitution should be understood in the context and time during which is was written. They believe that in order to make decisions regarding law and judicial review you must do everything in your power to think like the Founding Fathers during the 18th century and that the Constitution should not adapt to the times, but that the times must adhere to the Constitution and the Founding Fathers’ original intent. Generally, they believe that Constitutional amendments should be passed by Congress in order adapt to the times. Justice Gorsuch and the late Justice Antonin Scalia are ardent proponents of Originalism.

Living Constitutionalists find Originalism to be an absurd concept that doesn’t keep up with technological innovation and changing culture. For example, the Founding Fathers could have never imagined the internet or machine guns or LGBTQ citizens. They believe the Constitution is a living document that should adapt to the times, with or without updating the Constitution with amendments.

Conservatives tend to be Originalists and progressives tend to adhere to the Living Constitution doctrine.

Read More about Constitutional Interpretation: Originalism and the Living Constitution
The Federalist Papers In Modern Language: Indexed for Today’s Political Issues

Wings of the Court

(listed by most recent appointment)

The (generally) progressive wing of the court currently consists of the following justices:
Associate Justice Sonia Sotomayor (Obama appointee)
Associate Justice Elena Kagan (Obama appointee)
Associate Justice Ruth Bader Ginsburg (Clinton appointee)
Associate Justice Stephen Breyer (Carter appointee)

obama sotomayor biden
(From left to right) President Obama, Sonia Sotomayor, Vice President Joe Biden

The (generally) conservative wing of the Supreme Court currently consists of the following justices:
Associate Justice Neil Gorsuch (Trump appointee)
Chief Justice John Roberts (George W. Bush appointee)
Associate Justice Samuel Alito (George W. Bush appointee)
Associate Justice Clarence Thomas (George H.W. Bush appointee)
Associate Justice Anthony Kennedy (Ronald Reagan appointee; although, his decisions frequently swing between the two wings)

Associate Justice Neil Gorsuch

Associate Justice Ruth Bader Ginsburg

Aging Justices

Three of the nine Supreme Court Justices, Ruth Bader Ginsburg, Anthony Kennedy, and Stephen Breyer, are quite old. Justice Ginsburg turned 85 in March; Justice Breyer turns 80 in August; and Justice Kennedy turns 82 in July. If even one of them retires during President Trump’s time in office, Trump will secure a legacy that could last for more than a generation. Although Kennedy was appointed by President Reagan, some conservatives aren’t big fans due to his swing vote nature — he sides with both the progressive and conservative members of the court. Many conservatives see him as too progressive. The other two justices, Ginsburg and Breyer, being Democratic presidential appointees, consistently side with the progressive members of the court. You can practically hear the dripping sound of hardcore Republicans salivating at the prospect of all three retiring during President Trump’s time in office. Quibbl asks: will any Supreme Court Justices retire by the end of August?

Associate Justice Anthony Kennedy

Supreme Court Justice Anthony is 81 years old and has been a justice for thirty years, dating back to February of 1988. Nevada Senator Dean Heller revealed, behind closed doors, that he thinks Justice Kennedy will retire this summer. Will Supreme Court Justice Anthony Kennedy retire by the end of August 2018?

Supreme Court Decisions

First, let’s start off by explaining how the Supreme Court operates on an annual basis. The Supreme Court, like the rest of the government, begins fiscal year on October 1st and ends on September 30th. The fiscal year is called a term. “October Term 2017” begins on October 1st and ends on November 30th (as the calendar depicted below displays).

supreme court oct term 2017
LEGEND: Argument days are marked in red, non-argument sessions are marked in blue, conference days are marked in green, holidays are circled in black

According to, at the end of each term’s session — the Justices go on recess “from late June/early July until the first Monday in October” — the Supreme Court releases its decisions and opinions during the months of May and June. Although there is no obligatory deadline or mandated time and date for when the decisions and opinions are released, they are generally released on Mondays at 10 A.M.

According to CivilRights.Org, each year the Supreme Court receives upwards of 7,000 requests for cases to be heard. Of those 7,000 cases, the Court only takes about 80 cases, which is just about 1% of the requests. For lawyers to have their case heard is almost miraculous.

Recent Decisions

Decisions Made

So far, during this term (October Term 2017), two of the biggest decisions the Supreme Court of the United (SCOTUS) has made are in the cases of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission and Collins v. Virginia.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

A Christian baker in Colorado refused to make a wedding cake for a same-sex couple on the grounds that it would be in conflict with his religious beliefs. The Colorado Civil Rights Commission found that the bakeshop owner, Jack Phillips, had violated the state’s Anti-Discrimination Act. Through the appeals process Phillips’s case wound up before the Supreme Court, which, on June 4th, 2018, reversed Colorado’s decision on the grounds that compelling or forcing Phillips to “create expression… violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

The ruling was 7 to 2, with Justices Ginsburg and Sotomayor dissenting. Justice Anthony Kennedy wrote the majority opinion. Justices Kagan and Breyer broke ranks with the progessive wing and filed a concurring opinion, according to SCOTUSblog.Com.

Collins v. Virginia

In an 8 to 1 decision (Justice Alito dissented), the SCOTUS decided that police officers in Virginia unlawfully entered the property of Ryan Austin Collins after they had deemed he was the suspect involved in a high-speed chase upon seeing his motorcycle, which resembled the motorcycle that had been involved in the pursuit. The SCOTUS decided that because the motorcycle was on his land it was no longer subject to what is called the “automobile exception” which allows officers to search vehicles under the auspice of reasonable suspicion and without search warrants. Collins’s 4th Amendment right for people “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures” had been violated.

Upcoming Major Decisions (and Your Predictions)

Here’s the fun part — the moment for which you’ve all been waiting so patiently (or that you skipped ahead to — SHAME ON YOU!)

Janus v. AFSCME

At the crux of the Janus v. AFSCME case is that public sector unions across the country have been charging public sector employees union dues who have opted not to join the union. A lawsuit has made its way up to the Supreme Court, which will decide whether states can require their employees to pay these dues, even if they do not wish to join these public sector unions. The Supreme Court’s decision will impact the lives of millions of Americans.

Carpenter v. United States

For several months, from 2010 to 2011, cell phone stores in the Detroit metropolitan area were being robbed. After a long investigation, law enforcement apprehended suspects. One of the robbers, in an act of cooperation, gave his cell phone to FBI agents who used the device to track and find, via GPS, one of the suspects who hadn’t yet been apprehended, Timothy Carpenter. Carpenter’s lawyers claim that the FBI needed a warrant to track Carpenter’s location. The Supreme Court will soon decide whether they needed a warrant to track Carpenter’s location and if what law enforcement did was constitutional or not.

Trump v. Hawaii

On the campaign trail, then-candidate Trump made promises to enact a Muslim ban, which would bar Muslims from entering the country. Upon taking office, President Trump modified the ban to specific countries which all shared a common characteristic: they were all Muslim-majority nations. The state of Hawaii sued the Trump administration and that lawsuit has made its way to the Supreme Court of the United State (SCOTUS). As soon as next week, the SCOTUS will release its decision and opinions regarding the matter.

South Dakota v. Wafair, Inc.

As soon as next week, the Supreme Court will make a decision that will affect the wallets of anyone who shops online in the United States. In the case of South Dakota v. Wafair, Inc., the Supreme Court will decide if South Dakota — or any state for that matter — has the right to require online stores to charge state sales tax. With more and more people shopping online state are, logically, anxious they will lose tons of revenue if they don’t require companies to charge online sales tax.

Benisek v. Lamone

The case that will have the biggest impact on elections and redistricting of electoral maps is called Benisek v. Lamone. According to NPR, “gerrymandering is the practice of drawing electoral maps to give one party an advantage over another.” Both major political parties have been using gerrymandering to make maps that clump together their voters and keep them in power. One of the impacts of partisan gerrymandering is partisan polarization. The decision that the Supreme Court makes in the Benisek v. Lamone case will affect every person in the United States.

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