Essay Paper on The Supreme Court: Honoured and Vilified

In recent years, the Supreme Court has annually accepted for formal written opinions some 80 to 90 cases out of more than 7,000 requests—a little over 1 percent. Current issues involve gay rights to marriage benefits, abortion rights, restrictions, military tribunals, the special court for search warrants, a state’s right to condemn your property to sell it to private investors to raise the tax base, and many others. The Constitution does not explicitly grant the Supreme Court the power of judicial review; nevertheless, the power of the Supreme Court to overturn laws and executive actions it deems unlawful or unconstitutional is a well-established precedent. Justices are guaranteed judicial independence. However, as seen above, the President’s practice of appointing justices with similar ideology can be seen to compromise judicial independence.

Its political role. Article II of the Constitution provides the power to appoint Justices belongs to the President, acting with the “advice and consent” of the Senate. As a general rule, Presidents nominate individuals who broadly share their ideological views. In many cases, a Justice’s decisions may be contrary to what the nominating President anticipated. The “advice and consent” of the Senate is required for appointment. The confirmation process often attracts considerable attention from special-interest groups, many of which lobby senators to confirm or to reject. The Senate Judiciary Committee conducts hearings, questioning nominees to determine their suitability. If the Committee votes to recommend that the nomination be confirmed, it proceeds to the full Senate. Until the 1980s, the approval process of Justices was frequently quick. From the Truman through Nixon administrations, Justices were approved within one month. From the Reagan administration through the current administration of George W. Bush, however, the process took much longer. Some think this is because of the increasingly political role Justices are said to play.

Consents and dissents. Until 2005, the Supreme Court was working as an unvarying team for a long time. No vacancy arose for the eleven years between Stephen Breyer’s appointment in 1994 and Chief Justice William Rehnquist’s death in 2005. The Court between 1986 and 2005 is referred to as the “Rehnquist Court. But “it would be more accurate to describe it as the “O’Kennedy Court,” or the “O’Connor Court,” one thoroughly dominated by Justices Sandra Day O’Connor and Anthony Kennedy, who held down the ideological center of a closely divided bench.” – says Edward Lazarus, from Kennedy Center in his article The Court’s New Swing Vote. He continues: “From abortion rights to affirmative action, the religion clauses, the death penalty, states’ rights, and other key issues, O’Connor and Kennedy, either separately or jointly, controlled the direction of constitutional law. With some exceptions (most notably Bush v. Gore), they guided the Court toward a soft landing on the politically safe ground of nonradical conservatism….” On July 1, 2005, Rehnquist’s colleague Sandra Day O’Connor announced her retirement from her position of Associate Justice, after consulting with Rehnquist. Rehnquist died at his Arlington, Virginia, home on September 3, 2005, exactly four weeks short of his 81st birthday. Judge John Roberts Jr, his eventual successor, has been in a bloc since then, with Justices Antonin Scalia and Clarence Thomas, and, most notably, Samuel A. Alito. After new appointments, dissents in the Supreme Court attracted the international attention in June, 2006.

Bush’s administration until June 2006. “It is not clear where the court derives the authority — or the audacity — to contradict” Congress and the executive branch, Justice Scalia wrote. For Bush, this is an “impeachable offense,” some people think. It showed that “the Bush Administration broke both American law and the Geneva Conventions.” “At the broadest level, the Court has rejected the basic legal theory of the Bush administration since 9/11 — that the president has the inherent power to do whatever he wants in the name of fighting terrorism without accountability to Congress or the courts,” said Covington & Burling partner David Remes. For many the decision of the court was the answer to the question whether the new Roberts Court would look at terrorism cases differently or follow the recent pattern of skepticism of executive power — a path charted in part by now-retired Justice Sandra Day O’Connor. The international criticism began after the U.S. military on the orders of the U.S. administration were captured in Afghanistan on the basis of the War Powers Resolution invoked by the Congress on September 18, 2001. Bush’s administration held detainees from Afghanistan not under the usual conditions of Prisoners of War. President Bush was not allowed to do that because it was violation of the Geneva Convention. But some people from his office suggested that “he did not have to comply with the Geneva Conventions in handling detainees in the War on Terrorism.” The US State Department, though, warned him against ignoring the Geneva Conventions. To provide some legal excuse, Bush held the foreign detainees in Cuba (Guantanamo Bay) was chosen because it is not a sovereign territory of the United States and a previous Supreme Court ruling Johnson v. Eisentrager in 1950 had ruled that U.S. courts had no jurisdiction over enemy aliens held outside the USA. Nevertheless, the Supreme Court did not allow Bush to do that. A series of legal cases against Bush began in 2003. The ruling of the Supreme Court has been a serious challenge to the Bush’s administration since the President started using the authorization granted to him by Congress, on November 13, 2001, President Bush issued a Presidential Military Order: “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against Terrorism.” On November 10, 2003, the United States Supreme Court announced that it would decide on appeals by Afghan war detainees who challenge their continued incarceration at Guantánamo Bay as being unlawful. On June 28, 2004, the Supreme Court ruled in Rasul v. Bush that detainees in Guantánamo Bay could turn to U.S. courts to challenge their confinement, but can also be held without charges or trial, but in response, the Pentagon announced that cases would be reviewed by military tribunals, in compliance with Article 5 of the Third Geneva Convention. In june, 2006, the Supreme Court’s ruling against military tribunals for terror suspects was a setback for President Bush’s assertions of presidential power…

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