The United States Supreme Court was officially established with the ratification of the Constitution in 1789. The Constitution, however, does not go into great detail about the Court's function so, much consideration has been necessary in the past two centuries to determine its purview.

The Supreme Court is the highest court in the nation, and therefore is the primary overseer of the judicial branch of the government, which, alongside the legislative branch and executive branch, is a key component of a system of checks and balances.

Compared to the other two branches, though, the Supreme Court's responsibilities are relatively straightforward, with its most significant being judicial review. This process imbues the Court with the awesome power of determining whether existing laws are unconstitutional.

Yet the concept of judicial review is not directly expressed in the Constitution. It was envisioned and articulated by Chief Justice John Marshall in 1803 in the landmark case Marbury v. Madison.

Marshall saw it as critical to a working democracy that the Court possesses the ability to determine a law's constitutionality; otherwise, the legislative branch, which creates the laws, would hold too much power, or in the words of Marshall, have a "real and practical omnipotence."

The constitution does not stipulate how many justices may sit on the bench, but since 1869 the Supreme Court has maintained nine -one chief justice and eight associate justices. When a vacancy appears, a new justice is appointed by the president and approved by a majority vote in the Senate. An odd number is needed to break ties.

Once appointed, the justices serve for life, unless illness, retirement or illegal or unethical conduct force them out (the latter of which has never been done in the Court's history).

The Court's process of determining a law unconstitutional is remarkably long and thorough. First, the Court must select cases to consider that are submitted from the lower courts. In the eyes of the justices, these cases must present a vital constitutional issue.

Next, the Court closely reviews briefs submitted by the lawyers representing the individual cases. Then, the lawyers present oral arguments to the Court for further consideration of the case, during which the justices participate in intensive analysis and discussion.

Lastly, the Court writes an opinion, which is a detailed explanation of the decision they reached in the case. This process is long and painstaking and usually involves considerable examination and reconsideration of the case.

Once an opinion is completed, it then becomes binding, or law.The document that results is referred to as majority opinion.

Overall, the Supreme Court has had an immeasurable impact on the American political system and way of life. Its existence has helped maintain fairness and balance in the United States government, and its decisions have in some way affected virtually every member of society.

MATERIALS

PDF -Background information

PDF - Glossary of relevant terms

PDF - Copy of Constitution

PDF - List of noteworthy cases

NewsHour Supreme Court Page
 

1. Either individually or in groups, have the students carefully read the background information provided (printer-friendly PDF), the glossary of relevant terms (printer-friendly PDF) and Article III, section 1 of the Constitution.

2. Divide the class into groups of 3-4 students each.

3. Next, distribute the list of noteworthy Supreme Court cases (printer-friendly PDF) to each student.

4. Then ask the groups to determine the relevance of each decision to current society or to their own lives by using a scale of 1-5 (from critically important to insignificant).

5. After the groups have concluded on a number from the scale for a particular case, have them justify how they arrived at each decision (either orally to the class or in writing).

For example, one group may assign a "4" to Miranda v. Arizona and justify the decision by stating that since they themselves have never committed crimes before and have no intention of ever doing so, the case is insignificant to their lives.

However, another group may assign a "1" to the case, explaining that a young person must be informed of his/her rights at the point of arrest, no matter how minor the offense, to ensure his/her own due process (fair treatment) by the authorities. The group may also argue that mistakes can be made by law enforcement officials, and so knowing one's rights is crucial to protecting oneself from false or erroneous accusation.

Another group may assign Korematsu v. United States a "5," since they may see the treatment of Japanese Americans during World War II as far removed from their current lives, while a different group may argue for it receiving a "2," since they could see possible analogues to the way certain foreigners are treated today in light of the country's concerns about terrorism.

6. Discuss the responses as a class, attempting to arrive at the understanding that each case is complex and, depending on social and historical forces, could have various applications to the world.

Have students research the Supreme Court nominations from the last 5 presidents. Have the appointments been marked with any rancor? Do conservative presidents nominate conservative justices? Do the liberals nominate liberals? Are there any trends?
 

NATIONAL STANDARDS
 

For detailed explanations, please consult www.socialstudies.org/standards

Thematic Standards Standard

4: Individual Development and Identity Standard

5: Individuals, Groups, and Institutions Standard

6: Power, Authority, and Governance Standard

10: Civic Ideals and Practices

Disciplinary Standards

Standard 1: History

Standard 3: Civics and Government

In this simulation, students will work in groups, assuming one of these positions, and will evaluate the candidate's qualifications and possible political persuasions. Since the Senate Judiciary Committee hearings may go on for many weeks, the teacher can extend the lesson to include student debates between the different Senate subcommittees or revisit the lesson when it is more convenient.

Due to the potential controversial nature of many of the topics discussed during the nomination hearings the teacher might want to review the materials and resources beforehand.

Although this lesson is designed to be completed in two class periods, class time may vary. It is suggested that students be given time in class and at home (if necessary) to prepare for the simulation on the first day and then conduct their evaluations of the candidates on the second day.

With the retirement of Justice David Souter, President Obama will nominate his first member to the Supreme Court. Justice Souter surprised many when after being nominated by George H.W. Bush he sided with the more liberal leaning justices of the Court. From the earliest years, the Senate has guarded its power to review and approve or reject Presidential nominees to the Supreme Court. Since the early days of the republic, the Senate has considered a nominees qualifications, the importance of the position and the prevailing political climate in providing advice and consent to the President on his nomination. Your sub-committee's task is to consider the nominee's qualifications and opinions on various issues and determine whether he should be approved by the Senate.

MATERIALS

PDF - Strong Conservative Committee Member
PDF - Moderate Conservative Committee Member
PDF - Moderate Liberal Committee Member
PDF - Strong Liberal Committee Member

1. Divide the class into four subcommittees each representing one of the different positions on the U.S. Senate Judiciary Committee and pass out their respective student handouts. (With larger classes the teacher might want to create more than one subcommittee of each category to allow for smaller discussion groups. The teacher can also decide whether to place students in groups that are similar or different to their own personal views on the issues discussed in the subcommittee role descriptions.)

2. Give students time to review the history of judicial nominations and the role descriptions of their respective subcommittees. Answer any questions students might have before they begin their research.

3. Have students work in their subcommittees to research the president's nominee. They can go to the NewsHour special report on the Supreme Court at or any of the other major news outlets and/or interest groups' websites listed on their handout (and on the right navigation bar) for information. They should understand that the interest groups have specific agendas and might be favorable or unfavorable toward a specific candidate and that information from these sites should be taken in that context. If necessary, have students extend their research as a homework assignment.

4. On the second day, have students meet in their groups to briefly (10 minutes) discuss their findings from the day before. They have the option of coming to a consensus on the nominee or "agreeing to disagree" within their group. If this is the case, different members of each subcommittee should be allowed to present their views.

5. The teacher should then introduce the nominee or have one of the groups introduce the nominee with a brief biography.

6. Then have each group introduce themselves to the class by reviewing the role description on their student handout. After discussing their findings on the nominee using their research guide, the subcommittees should then vote on whether to accept or reject the nominee.

7. Have students do the follow up questions in either small group or general class discussion or as a written paper.

Follow-up questions:

• What did you learn about the nominee you researched in class?

McRel K-12 Standards Addressed:

Civics
- Standard 5: Understands the major characteristics of systems of shared powers and of parliamentary systems
- Standard 15: Understands how the U.S. Constitution grants and distributes power and responsibilities to national and state government and how it seeks to prevent the abuse of power
- Standard 20: Understands the roles of political parties, campaigns, elections, and associations and groups in American politics

Language Arts (Reading)
Standard 7: Uses reading skills and strategies to understand and interpret a variety of informational texts
- Listening and Speaking
Standard 8: Uses listening and speaking strategies for different purposes
- Viewing
Standard 9: Uses viewing skills and strategies to understand and interpret visual media
- Working with Others
Standard 1: Contributes to the overall effort of a group
Standard 4: Displays effective interpersonal communication skills

With Justice Souter's recent announcement that he will step down at the end of the term President Obama has to nominate a replacement justice. This lesson examines different aspects of the balance of power among the branches and the process of judicial nomination and confirmation: 1) how the court (and the entire judicial system) are an important part of the system of checks and balances; 2) the process for selecting members to the judiciary and how selection process is a fundamental part of the separation of powers/checks and balances in the U.S. Constitution; 3) the political and sometimes partisan side of the confirmation process that involves different philosophies of constitutional interpretation and jurisprudence.

The lesson is divided up into three steps. These can be modified at the teacher's discretion. There is also a list of vocabulary words that are used in Part III which students should know before the activities are conducted.

MATERIALS

PDF - Declare Your Powers

PDF - Declare Your Powers Answer Key

PDF - Supreme Court Confirmation Flow Chart

PDF - Supreme Court Confirmation Flow Chare Answer Key

PDF - Supreme Court Vocabulary
 

Part I: Declare Your Powers

This first activity helps students understand the dynamics of separation of powers/checks and balances and how the factors interplay with current issues. The chart depicting the separation of powers/checks and balances can be passed out as homework the day before the activity starts.

1. Divide students into three large groups. Then have each group separate into smaller groups of two or three. Pass out Handout 1: "Declare Your Powers" and have students review the directions and the chart in their small groups.

2. Rearrange students back into the three large groups. Have them move together in their groups so that there is space between each group. Designate each group to be one of the three branches of government.

3. Review the following circumstances with the class asking the student groups to raise their hands when they hear a circumstance where their branch has power to act. Then ask the other two groups to determine if they have the power to "check" the branch exercising their power and what power would they exercise to check that branch. (Check answer key for results)

Circumstances:

1. Homeland Security officials have been ordered to open suspicious

1. A recent bill to increase funding for education was passed again after it was rejected.
   

1. A health care insurance company has been ordered to pay for additional treatment requested by a patient.

1. In this activity students will review the process of selecting justices to the Supreme Court. Distribute Handout 2: "Supreme Court Confirmation Flow Chart" to students and review the Supreme Court Confirmation Process.

2. Then have students work in pairs or trios to complete the chart on Handout 2 that shows the steps a candidate must go through in order to be confirmed. This is primarily a reading-comprehension exercise, so it might be a good idea to work with students to make sure they identify all the steps and provide adequate descriptions of the process. Refer to the answer key for results. This activity could be done as homework.

1. Students can find further examples of Separation of Powers/Checks and Balances by reviewing the newspaper for articles that feature one or more of the branches in action. They can clip the articles, write a summary and identify which branch is exercising power and what branch might "check" that power.

2. For students to get a better understanding of the partisan politics surrounding the nomination process, students can conduct their own selection for Cabinet or Supreme Court nominees. Additional information on the two opposing viewpoints can be found at the Alliance for Justice and The Committee for Justice.
 

NATIONAL STANDARDS

McRel K-12 Standards Addressed:

Civics
Standard 5: Understands the major characteristics of systems of shared powers and of parliamentary systems
Standard 20: Understands the roles of political parties, campaigns, elections, and
associations and groups in American politics

Language Arts
- Reading
Standard 7: Uses reading skills and strategies to understand and interpret a variety of informational texts

- Listening and Speaking
Standard 8: Uses listening and speaking strategies for different purposes

-Viewing
Standard 9: Uses viewing skills and strategies to understand and interpret visual media

- Working with Others
Standard 1: Contributes to the overall effort of a group
Standard 4: Displays effective interpersonal communication skills