1 February 2005
The US Supreme Court convened for the first time on 1 February 1790 in New York City, the capital of the United States at the time. On 24 February 1803, the court delivered what is perhaps its most important decision, Marbury v. Madison. This February the court is back in the news with speculation about the retirement of Chief Justice William Rehnquist, who is suffering from thyroid cancer. Because of this, our word of the month for February is: supreme court, n., a judicial body holding the highest authority, 1773, first used in an act of parliament granting George III authority to establish such a court in Bengal; the highest judicial body in the United States or in one of the United States, 1788.
The Supreme Court, established by Article III of the Constitution is, as the name implies, the highest court in the land and the heads the judiciary, which is the third branch of the federal government after Congress and the Presidency. The court consists of nine justices, appointed for life. (Until 1807 there were six justices. Three more were added over the years, the last in 1869.)
The following words are associated with the US Supreme Court:
advice and consent, n., the power of the US Senate to approve the appointment of government officials, including justices of the Supreme Court, from the phrasing in the US Constitution. The phrase, in a more general sense, has a long history in English jurisprudence, dating to 17th century.
advisory opinion, n., a judicial opinion rendered by a court in advance of an actual case, as a guide for the legislature or lower courts. US federal courts do not issue advisory opinions and only rule on actual cases.
amicus curiae, n. & adj., one who files a legal brief in a case and who is not a party to the case; supposedly a disinterested advisor, but while not a party in the specific dispute, is often quite interested in the outcome; the Latin means friend of the court and this English calque is often used as well.
appeal, n., the transfer of authority over a case from an inferior court to a superior one, with the hope of modifying or overturning the decision of the inferior court, from the Old French apeler, to call, 1297.
associate justice, n., a judge, other than the Chief Justice, who sits on the US Supreme Court, before 1852.
bar, n., the profession of law, 1559, from the barrier that separates the public from the officers of the court.
bench, n., a judge’s seat, both literal and metaphorical, c.1275.
brief, n., a summary of the facts of a legal case and the points of law that apply to it, an argument to persuade the court to decide a case in a particular way, 1631, other senses date to Middle English, ultimately from the Latin breve, letter or note.
certiorari, n., an order granting a hearing before a superior court, from the Latin meaning to be certified, 1523. In the US legal system, appellate courts like the US Supreme Court are not obligated to hear particular cases and grant writs of certiorari to those cases that they decide to hear.
chief justice, n., the presiding judge of the US Supreme Court, 1788. The chief justice is “first among equals” and has few powers and authority distinct from the associate justices. Most significant among these few is that the chief justice assigns responsibility for writing opinions and dissents. The chief justice also presides over the Senate during trials of the President of the United States—this has happened twice in American history, most recently in 1999. By tradition, the chief justice administers the oath of office to the President at the inaugural ceremonies, but it is not a requirement that he be the one to do so.
circuit, n., an area of judicial jurisdiction, in the US federal judiciary one of thirteen appellate courts (the first through eleventh circuits, the District of Columbia circuit, and the federal circuit), from the practice of itinerant judges who would travel to a succession of locations to hear cases, 1494.
clear and present danger, c.phr., a standard by which the US government can impose censorship, or prior restraint, on free speech, from Schenck v. United States, 1919. Schenck v. United States was overturned in 1951. The current standard is whether the speech will promote imminent lawless action.
confirmation, n., ratification of a nominee to a public office, from the Old French and Latin, c.1330; in the US approval of a president’s selection to a government office, to include justices of the Supreme Court, by the Senate, the process of hearings and votes to approve such a selection.
dissent, n. & v., a judicial opinion that disagrees with the official ruling of the court, to write an opinion that disagrees with such an official ruling. While dissents are not enforced by the court, they are used in formulating arguments in future, similar cases and can be influential.
district, n., an area of judicial jurisdiction, from the French and Latin, 1611. In the US federal judiciary the lowest level of courts, trial courts. There are 94 district courts in federal bench, including at least one in each state, the District of Columbia, Puerto Rico, Guam, the Virgin Islands, and the Northern Marianas.
docket, n., in US legal usage, the cases pending before a court, 1790. From earlier English usage meaning a register of legal judgments and a summary of a legal judgment. The original usage dates to the 15th century and is of obscure origin, possibly from to dock, meaning to cut short, to abbreviate.
en banc, adj. & adv., reference to a judicial decision or meeting of all the judges on a court, from the French meaning on the bench. US federal circuit courts typically assign a panel of judges to hear individual cases and rarely hear cases en banc. The US Supreme Court hears all its cases en banc.
first Monday in October, c.phr., the day when the US Supreme Court’s term begins, established by statute in 1917.
judge, v. & n., to decide a legal question or case, one who is empowered to make legal decisions, c.1290, via Old French from the Latin judicare, judicem.
judicial activism, n., interpreting law in a way that goes beyond the intent of the original legislation, creating new law or policy via judicial decision, the term is generally used pejoratively and what exactly constitutes judicial activism in a given case is a matter of opinion, sometimes jocularly defined as applying to decisions with which one disagrees, 1962.
judicial review, n., the power of a higher court to review and rule on decisions of lower courts, specifically in the US the power of the courts to review acts of the legislature and rule on their constitutionality, originating in US legal writings, 1851.
jurisdiction, n., the power to exercise judicial authority, the extent or territory of judicial authority, from the Old French and Latin, before 1300.
justice, n., the exercise of power in maintenance of right, 1137-54, a judicial officer, a judge, specifically in the US a member of the US Supreme Court, c.1200.
Marbury v. Madison, n., the 1803 decision, written by Chief Justice Marshall, where the US Supreme Court first asserted its power of judicial review of legislative acts, a power that is not explicit in the Constitution. William Marbury had been a late-term appointment by President Adams as a justice of the peace for the District of Columbia. In the end-of-administration rush (the first change of power from one party to another), the commission paperwork was not completed. James Madison, the new Secretary of State, refused to grant the commission. Marbury, following the Judiciary Act of 1789 which granted original jurisdiction to the Supreme Court in such cases, filed suit with the court. The case was viewed as a lose-lose proposition for the judiciary. If the court sided with the new Jefferson administration, the lifetime appointments of the federal judiciary would be at risk. If it sided with Marbury, Madison would likely ignore the court’s ruling, rendering the court impotent. Chief Justice Marshall deftly found a way out of the dilemma by ruling that Marbury did indeed have a right to the commission, but that the court was powerless to enforce it because the 1789 law was unconstitutional. The US Constitution, wrote Marshall, defined the original jurisdiction of the court and an act of Congress could not change it. Ironically, by limiting its jurisdiction, Marshall gave the court its most important power. The new Democratic administration was pleased because the decision was decided in their favor. The outgoing Federalists were pleased because their judicial appointments remained in place. The only loser was Marbury.
motion, n., an application to a court requesting a ruling on a specific point of law, before 1726, from an earlier, more general, sense meaning a proposal or petition, before 1420.
nomination, n., the appointment of a person to an office or duty, 1430, from the Anglo-Norman and ultimately from the Latin meaning to name. Justices to the US Supreme Court are nominated by the President.
opinion, n., a formal statement of a judicial decision, before 1393. In the US legal system, opinions by single judges and by a majority of judicial panels are binding; dissenting opinions by minorities of judicial panels are not.
oral argument, n., the opportunity for an advocate to present his or her case in person to a court and an opportunity for judges to question the advocates and probe the validity of their arguments, as opposed to written motions. Oral arguments presented before the US Supreme Court are the most visible function of the court.
original jurisdiction, n., the authority to hear petitions and cases in a particular matter, as opposed to appellate jurisdiction. The original jurisdiction of the US Supreme Court is “all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party.”
precedent, n., a legal ruling that is used as an example or rule in subsequent cases, 1427.
SCOTUS, abbrev., Supreme Court of the United States.
solicitor-general, n., an official, in the US and England second only to the attorney-general, charged with arguing the government’s case in court, 1533-34, from solicitor, meaning a person authorized to act as an agent for another.
writ, n., a written order issued by a court, before 1400, from the Old English for writing.
