SUPREME
CONSEQUENCES
How a President's Bad Judicial Appointments
Threaten Your Liberty
SUPREME CONSEQUENCES | i
TABLE OF CONTENTS
The Federal Judiciary: No Longer the
"Least Dangerous Branch"........................... 2
Fast Facts About the Supreme Court . . ........ 4
Seats on the Supreme Court . . ...................... 6
Supreme Court Justices' Tenure.................. 8
The Road to Confirmation.. ......................... 10
Confirmation Odds & Ends.. ........................ 12
What Makes a Good or Bad Judge?.. .......... 14
Why Every Vote Matters............................. 16
A Closer Look at the Lower Courts............ 18
Resources to Learn More............................ 21
ii | THE HERITAGE FOUNDATION
SUPREME CONSEQUENCES | 1
THE FEDERAL JUDICIARY: NO LONGER THE "LEAST DANGEROUS BRANCH"
O
ur Founding Fathers recognized that
too much power accumulated in one
branch of government is a significant threat
to liberty. They sought to avoid this by separating power among the three branches of
the federal government and between the
federal government and the sovereign states.
This system of checks and balances would
prompt ambition to counteract ambition. Our
constitutional system relies on this separation of powers to limit the ability of any one
branch to encroach upon the prerogatives
of the other branches, helping preserve our
liberty against any monopoly of governmental power.
While the courts have the duty to say what
the law is in a case properly before them, the
other branches of government have an independent obligation to uphold the Constitution.
Although the Framers of the Constitution envisioned that the judiciary would be the “least
dangerous branch,” it has transformed itself
into a policymaking body that wields wideranging power over virtually every aspect of
American life. The Supreme Court has grabbed
power by declaring that its decisions are
the supreme law of the land, and the other
branches have largely acceded to these claims.
Judges engage in judicial activism when
they write subjective policy preferences
into the law instead of applying the law
impartially according to its original meaning.
2 | THE HERITAGE FOUNDATION
Examples of Supreme Court Power Grabs
Usurping national security
authority, the Supreme Court
extended the right of habeas
corpus to the Guantanamo Bay
detainees in Boumediene v. Bush.
The Supreme Court instituted
one of the largest tax increases in
history in National Federation of
Independent Business v. Sebelius
when it strained the Affordable
Care Act’s text to uphold the
individual health care mandate
as a valid exercise of Congress’s
taxing power.
The first step in curbing the judiciary’s excesses
is for the President to nominate and the Senate
to confirm individuals with a proper understanding of the limited role of the judiciary.
The President’s choices will have a big impact
on the judiciary because he or she will likely
have the opportunity to nominate Supreme
Court justices and roughly one-third of federal
district court and appeals court judges. The
President should nominate individuals whose
records demonstrate that they will apply
the Constitution and laws according to their
original public meaning. Senators should rigorously question nominees about their judicial
philosophy and examine their records, and then
vote to confirm only nominees who understand
the proper limited role of the judiciary.
DID YOU KNOW?
In Kelo v. City of New London, the
Supreme Court interpreted the
Takings Clause of the Constitution
to allow the government to seize
citizens’ homes—not to build a
road or fulfill some other public
use as is required by the Fifth
Amendment, but to transfer the
property to a private corporation
because it could pay more taxes.
In recognizing a constitutional
right to marriage that includes
same-sex couples in Obergefell
v. Hodges, the Supreme Court
issued a decision so unmoored
from the text of the Constitution
that even supporters of the ruling
have described it as unintelligible
and poorly reasoned.
W
hen judges rely on the so-called
Living Constitution to make the
text comport with what they see as the
spirit of the times, they exceed their
authority to interpret the Constitution.
One example is the doctrine of
“evolving standards,” whereby a court
looks to the national consensus of
states to decide whether a practice
violates the Constitution.
SUPREME CONSEQUENCES | 3
FAST FACTS
To date, the Court has issued
more than
30,000opinions.
ABOUT THE SUPREME COURT
“
“
The judiciary…has no influence over either the sword or the
purse; no direction either of the strength or of the wealth of the
society; and can take no active resolution whatever. It may truly
be said to have neither FORCE nor WILL, but merely judgment.
OCT
NOV
DEC
JAN
Only
4
Presidents failed to appoint a single justice to the Supreme Court:
—Federalist No. 78, Alexander Hamilton
FEB
MAR
APR
MAY
JUN
The Supreme Court’s term runs from
the first Monday in October through
the end of June.
OCT
NOV
DEC
JAN
FEB
MAR
APR
The justices hear oral arguments from
October to April and issue opinions
from around Thanksgiving through
the end of June.
The Court agrees to hear
roughly
70 cases 7,000
from an average of
petitions it receives each term.
4 | THE HERITAGE FOUNDATION
Andrew
Johnson
William Henry
Harrison
George Washington appointed
11 justices
over the course of his presidency—including
the recess appointment of John Rutledge as
Chief Justice, whom the Senate rejected.
Franklin Delano Roosevelt
appointed
8 justices
and elevated one to Chief Justice.
Zachary
Taylor
Jimmy
Carter
Andrew Jackson appointed
6 justices
including Chief Justice Roger Taney,
author of the infamous
Dred Scott v. Sandford decision.
William Howard Taft
is the
Only President
to be appointed to the Court. He became
Chief Justice eight years after his presidency.
SUPREME CONSEQUENCES | 5
SEATS ON THE SUPREME COURT
1789
6
Congress
passes the
Judiciary Act,
setting the
number at
six justices,
including one
Chief Justice.
1800
5
Congress reduces
the number of
seats to five.
This may have
been intended
to prevent the
incumbent
President, Thomas
Jefferson, from
making an
appointment.
1802
1807
6 7
Congress
restores the
sixth seat.
Congress
increases the
number to
seven justices.
1837
9
Congress
increases the
number to
nine justices.
1863
1866
1868
10 7 9
Congress
increases the
number to 10
justices to
secure a proUnion majority.
Following
the Civil War,
Congress
decreases the
number to
seven justices to
prevent Andrew
Johnson from
making any
appointments.
Congress
increases the
number to
nine justices,
where it has
stayed.
DID YOU KNOW?
In 1937, in an attempt to
oust the “Four Horsemen”—
conservative justices who
opposed the New Deal agenda—
Franklin Delano Roosevelt
tries to persuade Congress
to allow the appointment of
an additional justice for every
sitting justice who chooses not
to retire upon turning 70, with
a maximum of six extra justices.
The measure fails in the Senate.
Today, there are
nine seats on the
Supreme Court,
but that was not
always the case.
Here’s a look at
how the number of
justices has varied
over the years.
6 | THE HERITAGE FOUNDATION
SUPREME CONSEQUENCES | 7
SUPREME COURT JUSTICES' TENURE
Shortest Term
CURRENT SUPREME
COURT JUSTICES
1
YEAR, 18 days
John Rutledge, 1790-1791
John Roberts
(Bush, 2005)
Tenure: 10 Years
Age: 61
Anthony Kennedy
(Reagan, 1988)
Tenure: 28 Years
Age: 80
Clarence Thomas
(Bush, 1991)
Tenure: 24 Years
Age: 68
Longest Term
36
Ruth Bader Ginsburg
(Clinton, 1993)
Tenure: 23 Years
Age: 83
Sonia Sotomayor
(Obama, 2009)
Tenure: 7 Years
Age: 62
Stephen Breyer
Samuel Alito
(Clinton, 1994)
Tenure: 22 Years
Age: 78
(Bush, 2006)
Tenure: 10 Years
Age: 66
Elena Kagan
?
(Obama, 2010)
Tenure: 6 Years
Age: 56
To Be Determined
With the passing of Justice Antonin
Scalia at age 79, this seat is currently
vacant. Appointed by President Ronald
Reagan in 1986, Scalia served on the
Supreme Court for nearly 30 years.
YEARS,
209 days
William O. Douglas, 1939-1975
Average length of justice’s term
16
YEARS
DID YOU KNOW?
M
any early Supreme
Court justices resigned
from the Court to take positions they viewed as more
prestigious. For example, in
1791, John Rutledge left the
Court to serve on a South
Carolina state court; our first
Chief Justice, John Jay, ran
for governor of New York
twice during his tenure on the
Court and left in 1795 when
he was elected; and David
Davis left the Court in 1877
after 15 years to become a
U.S. Senator for Illinois.
U
ntil the late 1800s, the
justices were required
to travel around a circuit
of courts to hear appellate
cases. This schedule and the
harsh travel conditions made
the job unappealing to many
leading lawyers of the time.
Today, an appointment to the
Supreme Court is typically
the capstone of a long legal
career, and justices serve until
they are ready to retire altogether or until their deaths.
Source: Supreme Court of the United States,
“Frequently Asked Questions: Supreme Court
Justices,” http://www.supremecourt.gov/
faq_justices.aspx#faqjustice4.
*Data current as of summer 2016
8 | THE HERITAGE FOUNDATION
SUPREME CONSEQUENCES | 9
THE ROAD TO CONFIRMATION
VACANCY OCCURS
5
START
4
1
ABA RATING
The American Bar Association’s
Standing Committee on the
Federal Judiciary rates nominees
from “not qualified” to
“well qualified.” Nine Presidents
have solicited these ratings
before selecting nominees, but
some have expressed concern
about the ABA’s liberal bias.
2
10 | T HE HERITAGE FOUNDATION
The chairman of the Senate
Judiciary Committee sends
letters to Senators from the
nominee’s home state soliciting
their opinions as to the nominee’s
qualifications. This informal
practice is not part of the Senate’s
rules, but it has been used in some
form since 1917.
3
SENATE’S DUTY TO ADVISE
AND CONSENT BEGINS
PRESIDENT MAKES
NOMINATION
POSSIBLE
ROADBLOCKS
TO
CONFIRMATION
BLUE SLIP
The Senate’s duty to “advise and
consent” does not mean
rubber-stamping nominees.
Traditional deference to the
President’s choices does not mean
that nominees who would be bad
judges should be confirmed.
SENATE JUDICIARY
COMMITTEE CONSIDERS
NOMINATION
A nominee submits answers to a
detailed questionnaire discussing
employment history, associations
and memberships, published
writings and speeches, and prior
judicial office and summaries of
significant cases (if applicable).
Then the committee holds a
hearing to ask the nominee
questions about his or her record,
judicial philosophy, writings,
and other relevant information.
Sometimes witnesses will present
testimony about a nominee. For
nominees who have served on
a lower court, Senators should
ask the nominee to explain
any controversial rulings.
6
COMMITTEE VOTES TO REPORT
NOMINEE TO THE FULL SENATE
8
PRESIDENT SIGNS
JUDGE’S COMMISSION
AND JUDGE IS SWORN IN
7
DEBATE AND VOTE
Once a nominee reaches the
full Senate, Senators may
debate whether or not to
confirm. Then they go
through the process of voting
to confirm or reject the
nomination.
SCRUTINY
FILIBUSTER
SPECIAL INTERESTS
The media scrutinize a nominee’s work history,
affiliations, and personal life. During the Senate
vetting of Supreme Court nominee Robert
Bork, journalists dug through his trashcans and
visited his video rental store hoping to uncover
juicy details about his personal life.
Senators can try to block a
nominee’s confirmation by using
this procedural maneuver. In 1968,
such a method was used to prevent
Associate Justice Abe Fortas from
being elevated to Chief Justice.
Special-interest groups try to extract assurances that nominees will rule in favor of
their causes once confirmed. NARAL ProChoice America urged Senators to ask Sonia
Sotomayor about her views on the Court’s
abortion cases before she was confirmed.
SUPREME CONSEQUENCES | 11
“
"[A] jurisprudence
based on first principles
is neither conservative
nor liberal, neither
right nor left. It is a
jurisprudence that
cares about committing
and limiting to each
organ of government
the proper ambit of its
responsibilities. It is a
jurisprudence faithful to
our Constitution."
—Edwin Meese III,
75th U.S. Attorney General
“
"[T]he highest exercise
of judicial duty is to
subordinate one's
personal pulls and one's
private views to the law."
—Justice Felix Frankfurter
CONFIRMATION
ODDS & ENDS
What happens if a vacancy
occurs during a presidential
election year?
Can the President make
recess appointments to the
Supreme Court?
Supreme Court vacancies in presidential
election years are rare.
The Constitution permits the President to
fill a judiciary vacancy with a temporary
appointment when the Senate is in recess.
The last time a nominee was confirmed to
a seat that opened up during a presidential election year was in 1932. Republican
President Herbert Hoover nominated
Benjamin Cardozo on February 15, 1932,
and the Republican-controlled Senate
confirmed him on February 24.
The last confirmation when the President
was not from the same party as the
Senate majority occurred in 1888 when
Democratic President Grover Cleveland
nominated and the Republican Senate
confirmed Melville Fuller as Chief Justice.
A current member of the Supreme Court,
Justice Anthony Kennedy, was confirmed
in a presidential election year (1988), but
the vacancy that he filled arose in the
previous year and was held over because
the Senate defeated the first person nominated to that seat.
Past Presidents, including George
Washington and Dwight Eisenhower,
made recess appointments to the
Supreme Court. These temporary appointments last until the end of the Senate’s
next session.
There have been nine recess appointments to the Supreme Court.
The Supreme Court determined in Noel
Canning v. National Labor Relations Board
that the Senate alone determines when it is
in recess and that a recess lasting less than
10 days is presumptively too short to allow
the President to make a recess appointment. When the Senate breaks for the
evening, this is not an opportunity for the
President to make a recess appointment.
Does the Senate have
a duty to confirm?
Though the Constitution says the
President “shall nominate” justices, the
Senate’s obligation to provide “advice and
consent” is not fleshed out. The Senate
is free to withhold its consent and is not
obligated to hold hearings or votes.
To date, the Senate has confirmed 124 of
161 nominations to the Supreme Court.
Of the 36* who were not confirmed, 25
were never voted on by the Senate. This
includes six nominees who were later
confirmed, such as John Roberts who was
first nominated to be an associate justice
replacing Sandra Day O’Connor but subsequently was nominated to be Chief Justice
after William Rehnquist passed away.
*A nomination to the Supreme Court is pending as of publication.
Source: Josh Blackman, “Nominations to Supreme Court in Election Year with Divided and unified Governments,” February 13, 2016,
http://joshblackman.com/blog/2016/02/13/nominations-to-supreme-court-in-election-year-with-divided-and-unified-governments/.
Source: Barry J. McMillion, “Supreme Court Appointment Process: Senate Debate and Confirmation Vote,” Congressional Research
Service Report, October 19, 2015, https://www.fas.org/sgp/crs/misc/R44234.pdf.
12 | THE HERITAGE FOUNDATION
SUPREME CONSEQUENCES | 13
WHAT MAKES A GOOD JUDGE?
WHAT MAKES A BAD JUDGE?
A good judge is committed to faithfully applying the Constitution and statutes by
relying on their original public meaning, understands that a judge’s role is limited,
and does not issue outcome-oriented decisions.
A bad judge interjects subjective policy preferences into the law, strains the text to
achieve desired ends, elevates personal sympathy for particular litigants above the
requirements of the law, turns to international law to justify a preferred outcome,
and reads new rights into the Constitution that are not grounded in the text.
ORIGINALIST
FAITHFUL
PLAYS
LAWMAKER
LIVING
CONSTITUTION
IMPARTIAL
TEXTUALIST
BIASED
OBJECTIVE
PRINCIPLES
OVER POLITICS
RESTRAINED
“[U]nless judges are bound by the text of the Constitution, we will, in fact, no
longer have a government of laws, but of men and women who are judges. And
if that happens, the words of the documents that we think govern us will be just
masks for the personal and capricious rule of a small elite.”
RONALD REAGAN
14 | THE HERITAGE FOUNDATION
CONTORTS
TEXT
INVENTS
RIGHTS
PICKS
FAVORITES
END JUSTIFIES
MEANS
In “truly difficult” cases, “adherence to precedent and rules of construction
and interpretation will only get you through the 25th mile of the marathon.
That last mile can only be determined on the basis of one’s deepest values,
one’s core concerns, one’s broader perspectives on how the world works,
and the depth and breadth of one’s empathy."
BARACK OBAMA
SUPREME CONSEQUENCES | 15
E
VOTE
very vote matters in cases before
the Supreme Court. Often, big
cases are decided by just one vote.
While the justices agree in many
cases, it’s important for a President
who is nominating a justice to
consider that this one person could
make a big difference in nearly a
quarter of the cases each term.
MATTERS
Here's a look at the breakdown of
votes over the past 10 years:
WHY
EVERY
DECISIONS BY VOTE COUNT
2005–2014
Unanimous Decision
5-4 Decisions
Consider some of the important cases
in the past 10 years where one justice
was the deciding vote:
LOSSES
KELO v. CITY OF NEW LONDON
(property rights and eminent
domain)
MCDONALD v. CITY OF CHICAGO
and D.C. v. HELLER
(gun rights)
OBERGEFELL v. HODGES
(creating a right to same-sex
marriage)
TOWN OF GREECE v. GALLOWAY
and BURWELL v. HOBBY LOBBY
(religious freedom)
NFIB v. SEBELIUS
(Obamacare and Congress's
commerce power)
CITIZENS UNITED v. FEC and
MCCUTCHEON v. FEC
(political speech and campaign
contributions)
ARIZONA STATE LEGISLATURE
v. ARIZONA INDEPENDENT
REDISTRICTING COMMISSION
(rewriting plain text for political
purposes)
RICCI v. DESTEFANO and
PARENTS INVOLVED IN
COMMUNITY SCHOOLS v.
SEATTLE SCHOOL DISTRICT NO. 1
(racial preferences and equality
under law)
6-3 Decisions
7-2 Decisions
8-1 Decisions
Judges have no business creating new, special rights for individuals or groups that are not in
the Constitution. The only way to create new rights is to amend the Constitution as we have
done to meet society’s needs several times in our nation’s history.
16 | THE HERITAGE FOUNDATION
WINS
BOUMEDIENE v. BUSH
(extending due process rights to
detainees at Guantanamo Bay)
GONZALES v. CARHART
(partial-birth abortion ban)
MASSACHUSETTS v. EPA
(agency can regulate
greenhouse gases)
SHELBY COUNTY v. HOLDER
(voting rights)
SUPREME CONSEQUENSES | 17
A CLOSER LOOK AT
THE LOWER COURTS
It’s not just the Supreme Court that matters when it comes to judicial nominations.
Many cases never reach the Supreme Court, so it’s important that the President also
selects good judges for the federal district and appellate courts.
94
federal district
courts with
judges
670
Number of cases filed
in federal district court
in 2014:
390,525
WHO CONTROLS THE
APPELLATE COURTS?
1
9
7
10
13
courts of
appeals with
2
8
5
179
3
6
4
11
judges
Number of appeals filed
in federal appellate courts
in 2014:
55,623
DID YOU KNOW?
T
he Constitution grants courts the power to interpret laws and government
actions in appropriate cases to determine whether they are constitutional.
No court, not even the Supreme Court, is authorized to make or change the law.
D.C. CIRCUIT
SUPREME COURT
FEDERAL CIRCUIT
The federal judiciary includes 13 courts of appeals. There are 12
geographically based circuits, which are the First through Eleventh
Circuits and the D.C. Circuit. There is one subject-matter based court,
the Federal Circuit, which hears appeals involving patents, trademarks,
and government contracts, among others.
Currently, Democrat appointees dominate nine of these 13 appellate
courts, and the Supreme Court is evenly split between Republican and
Democrat appointees.
PERCENTAGE OF JUDGES BY PRESIDENTS' PARTY
100% 80% 67% 50% 58-62% 67% 72% 100%
Source: United States Courts, Statistics and Reports, “Federal Judicial Caseload Statistics 2014,”
http://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2014.
18 | T HE HERITAGE FOUNDATION
SUPREME CONSEQUENCES | 19
WHICH PRESIDENT'S APPOINTMENTS
DOMINATE THE APPELLATE COURTS?
Carter
RESOURCES TO LEARN MORE
Total=93
1
Total=77
What Is the Proper Role of the Courts?
By Robert Alt | The Heritage Foundation
Ford
1
Reagan
Originalism: A Quarter Century of Debate
By The Federalist Society
15
Clinton
38
G. Bush
9
Heritage Action for America: Will You Vote
for Obama's Reckless Supreme Court?
www.heritageaction.com/judges
G.W. Bush
52
Obama
54
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DID YOU KNOW?
F
ederal judges serve lifetime appointments, and a two-term President could
nominate hundreds of judges to the federal judiciary. From trial-level district
courts to the Supreme Court, these appointments may have a longer and
more profound impact on our society and the rule of law than anything else a
President may do in eight years in office.
20 | THE HERITAGE FOUNDATION
LECT
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Who Shoul
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Who Should Interpret Our Statutes and How It
Affects Our Separation of Powers
By Judge Carlos T. Bea
Supreme Court Website
http://www.supremecourt.gov/about/about.aspx
SUPREME CONSEQUENCES | 21
THE LEAST DANGEROUS BRANCH?
The judiciary is often the overlooked third branch of government. Yet the
judges who populate its ranks wield tremendous power to decide cases
that affect the daily lives of millions of Americans. It was not always
this way—the Founders believed that the judiciary would be the "least
dangerous branch." Over time, however, judges have inserted themselves
into virtually every aspect of life, such as Americans’ ability to own a gun,
make campaign donations to political candidates, and own a home free
from government interference, among many others.
Judges do not simply appear out of thin air. They are put on the federal
bench by the presidents who nominate them and the senators who
confirm them. Selecting judges who will be bound by the law and
committed to the Constitution is not an ancillary responsibility—it is
a central and critical duty, with long-lasting effects. The public, too,
has a role to play in shaping the courts, by electing presidents and
senators who recognize the proper—and limited—role of judges in our
government.
Supreme Consequences: How a President's Bad Judicial Appointments
Threaten Your Liberty reveals the proper role of judges in our
government, lays out the road to confirmation for those nominated to
be judges, and highlights close cases in which a single Supreme Court
justice made the difference in cases of incredible significance.
To view the booklet online go to: www.heritage.org/courts.
214 MASSACHUSETTS AVE, NE
WASHINGTON, DC 20002
HERITAGE.ORG