The Supreme Court and a Nation of Liberties

Issues/Topics Covered in this Chapter

  • Defining Civil Rights
  • The structure and important features of the Supreme Court
  • Supreme Court case selection process
  • Supreme Court’s processes and procedures
  • Judicial Decision-Making and Implementation by the Supreme Court
  • The Warren Court in historical context
  • The Warren Court as it confronted the issues of race, gender, and religion in the post-war period
  • The Court’s reaction to state and federal legislation on Bill of Rights freedoms
  • Civil rights cases from the early 1940s to the present.
  • Over the next quarter century, the belief in individual freedoms and rights would push the nation and the Supreme Court towards a new agenda.

Defining Civil Rights

The belief that people should be treated equally under the law is one of the cornerstones of political thought in the United States. Yet not all citizens have been treated equally throughout the nation’s history, and some are treated differently even today. For example, until 1920, nearly all women in the United States lacked the right to vote. Black men received the right to vote in 1870, but as late as 1940, only 3 percent of African American adults living in the South were registered to vote, due largely to laws designed to keep them from the polls.[1] Americans were not allowed to enter into legal marriage with a member of the same sex in many U.S. states until 2015. Some types of unequal treatment are considered acceptable in some contexts, while others are clearly not. No one would consider it acceptable to allow a ten-year-old to vote, because a child lacks the ability to understand important political issues, but all reasonable people would agree that it is wrong to mandate racial segregation or to deny someone voting rights on the basis of race. It is important to understand which types of inequality are unacceptable and why.

Essentially, civil rights are guarantees by the government that it will treat people equally—particularly people belonging to groups that have historically been denied the same rights and opportunities as others. The due process clause of the Fifth Amendment to the U.S. Constitution enacted the Declaration of Independence’s proclamation that “all men are created equal” by providing de jure equal treatment under the law. According to Chief Justice Earl Warren in the Supreme Court case of Bolling v. Sharpe (1954), “discrimination may be so unjustifiable as to be violative of due process.”[2] Additional guarantees of equality were provided in 1868 by the equal protection clause of the Fourteenth Amendment, which states, in part, that “No State shall . . . deny to any person within its jurisdiction the equal protection of the laws.” Thus, between the Fifth and Fourteenth Amendments, neither state governments nor the federal government may treat people unequally unless unequal treatment is necessary to maintain important governmental interests such as public safety.

We can contrast civil rights with civil liberties, which are limitations on government power designed to protect our fundamental freedoms. For example, the Eighth Amendment prohibits the application of “cruel and unusual punishments” to those convicted of crimes, a limitation on the power of members of each governmental branch: judges, law enforcement, and lawmakers. As another example, the guarantee of equal protection means the laws and the Constitution must be applied on an equal basis, limiting the government’s ability to discriminate or treat some people differently, unless the unequal treatment is based on a valid reason, such as age. A law that imprisons men twice as long as women for the same offense, or restricting people with disabilities from contacting members of Congress, would treat some people differently from others for no valid reason and would therefore be unconstitutional. According to the Supreme Court’s interpretation of the Equal Protection Clause, “all persons similarly circumstanced shall be treated alike.”[3] If people are not similarly circumstanced, however, they may be treated differently. Asian Americans and Latinos overstaying a visa are similarly circumstanced; however, a blind driver or a ten-year-old driver is differently circumstanced than a sighted, adult driver.

Laws that treat one group of people differently from others are not always unconstitutional. In fact, the government engages in legal discrimination quite often. In most states, you must be eighteen years old to smoke cigarettes and twenty-one to drink alcohol; these laws discriminate against the young. To get a driver’s license so you can legally drive a car on public roads, you have to be a minimum age and pass tests showing your knowledge, practical skills, and vision. Some public colleges and universities run by the government have an open admission policy, which means the school admits all who apply, but others require that students have a high school diploma or a particular score on the SAT or ACT or a GPA above a certain number. This is a kind of discrimination, because these requirements treat people who do not have a high school diploma or a high enough GPA or SAT score differently. How can the federal, state, and local governments discriminate in all these ways even though the equal protection clause seems to suggest that everyone be treated the same?

The answer to this question lies in the purpose of the discriminatory practice. In most cases when the courts are deciding whether discrimination is unlawful, the government has to demonstrate only that it has a good reason to do so. Unless the person or group challenging the law can prove otherwise, the courts will generally decide the discriminatory practice is allowed. In these cases, the courts are applying the rational basis test. That is, as long as there’s a reason for treating some people differently that is “rationally related to a legitimate government interest,” the discriminatory act or law or policy is acceptable.[4] For example, since letting blind people operate cars would be dangerous to others on the road, the law forbidding them to drive is reasonably justified on the grounds of safety and is therefore allowed even though it discriminates against the blind. Similarly, when universities and colleges refuse to admit students who fail to meet a certain test score or GPA, they can discriminate against students with weaker grades and test scores because these students most likely do not yet possess the knowledge or skills needed to do well in their classes and graduate from the institution. The universities and colleges have a legitimate reason for denying these students entrance.

The courts, however, are much more skeptical when it comes to certain other forms of discrimination. Because of the United States’ history of ethnic, racial, gender, and religious discrimination, the courts apply more stringent rules to policies, laws, and actions that discriminate on these bases (race, ethnicity, gender, religion, or national origin).

Discrimination based on gender or sex is generally examined with intermediate scrutiny. The standard of intermediate scrutiny was first applied by the Supreme Court in Craig v. Boren (1976) and again in Clark v. Jeter (1988). It requires the government to demonstrate that treating men and women differently is “substantially related to an important governmental objective.” This puts the burden of proof on the government to demonstrate why the unequal treatment is justifiable, not on the individual who alleges unfair discrimination has taken place. In practice, this means laws that treat men and women differently are sometimes upheld, although usually they are not. For example, in the 1980s and 1990s, the courts ruled that states could not operate single-sex institutions of higher education and that such schools, like South Carolina’s military college The Citadel, must admit both male and female students.[5] Women in the military are now also allowed to serve in all combat roles, although the courts have continued to allow the Selective Service System (the draft) to register only men and not women.[6]

Discrimination against members of racial, ethnic, or religious groups or those of various national origins is reviewed to the greatest degree by the courts, which apply the strict scrutiny standard in these cases. Under strict scrutiny, the burden of proof is on the government to demonstrate that there is a compelling governmental interest in treating people from one group differently from those who are not part of that group—the law or action can be “narrowly tailored” to achieve the goal in question, and that it is the “least restrictive means” available to achieve that goal.[7] In other words, if there is a non-discriminatory way to accomplish the goal in question, discrimination should not take place. In the modern era, laws and actions that are challenged under strict scrutiny have rarely been upheld. Strict scrutiny, however, was the legal basis for the Supreme Court’s 1944 upholding of the legality of the internment of Japanese Americans during World War II.[8] Finally, affirmative action consists of government programs and policies designed to benefit members of groups historically subject to discrimination. Much of the controversy surrounding affirmative action is about whether strict scrutiny should be applied to these cases.

At the time of the nation’s founding, of course, the treatment of many groups was unequal: the rights of women were decidedly fewer than those of men, and neither they, the hundreds of thousands of enslaved people of African descent, or indigenous Americans were considered fully human, let alone U.S. citizens. While the early United States was perhaps a more inclusive society than most of the world at that time, equal treatment of all remained a radical idea.

The aftermath of the Civil War marked a turning point for civil rights. The Republican majority in Congress was enraged by the actions of the reconstituted governments of the southern states. In these states, many former Confederate politicians and their sympathizers returned to power and attempted to circumvent the Thirteenth Amendment’s freeing of enslaved men and women by passing laws known as the Black codes. These laws were designed to reduce formerly enslaved people to the status of serfs or indentured servants. Black people were not just denied the right to vote, but also could be arrested and jailed for vagrancy or idleness if they lacked jobs. Black people were excluded from public schools and state colleges and were subject to violence at the hands of White people.[9]

To override the southern states’ actions, lawmakers in Congress proposed two amendments to the Constitution designed to give political equality and power to formerly enslaved people. Once passed by Congress and ratified by the necessary number of states, these became the Fourteenth and Fifteenth Amendments. In addition to including the equal protection clause as noted above, the Fourteenth Amendment also was designed to ensure that the states would respect the civil liberties of freed people. The Fifteenth Amendment was proposed to secure the right to vote for Black men, which will be discussed in more detail later in this chapter.

Looking back, it’s relatively easy to identify civil rights issues that arose, looking into the future is much harder. For example, few people fifty years ago would have identified the rights of gay or transgender Americans as an important civil rights issue, or predicted it would become one. Similarly, in past decades the rights of those with disabilities, particularly intellectual disabilities, were often ignored by the public at large. Many people with disabilities were institutionalized and given little further thought, and until very recently, laws remained on the books in some states allowing those with intellectual or developmental disabilities to be subject to forced sterilization.12 Today, most of us view this treatment as barbaric.

Clearly, then, new civil rights issues can emerge over time. How can we, as citizens, identify them as they emerge and distinguish genuine claims of discrimination from claims by those who have merely been unable to convince a majority to agree with their viewpoints? For example, how do we decide if sixteen-year-olds are discriminated against because they are not allowed to vote, as some U.S. lawmakers are starting to suggest? We can identify true discrimination by applying the following analytical process:

  1. Which groups? First, identify the group of people who are facing discrimination.
  2. Which right(s) are threatened? Second, what right or rights are being denied to members of this group?
  3. What do we do? Third, what can the government do to bring about a fair situation for the affected group? Is proposing and enacting such a remedy realistic?
This section is composed of text taken from Chapter 5.1 of American Government 3e and is used under a CC BY-NC-SA 4.0 licence. No changes have been made to the text nor original material added.

 The structure and important features of the Supreme Court

The Supreme Court of the United States, sometimes abbreviated SCOTUS, is a one-of-a-kind institution. While a look at the Supreme Court typically focuses on the nine justices themselves, they represent only the top layer of an entire branch of government that includes many administrators, lawyers, and assistants who contribute to and help run the overall judicial system. The Court has its own set of rules for choosing cases, and it follows a unique set of procedures for hearing them. Its decisions not only affect the outcome of the individual case before the justices, but they also create lasting impacts on legal and constitutional interpretation for the future.

The original court in 1789 had six justices, but Congress set the number at nine in 1869, and it has remained there ever since. There is one chief justice, who is the lead or highest-ranking judge on the Court, and eight associate justices. All nine serve lifetime terms, after successful nomination by the president and confirmation by the Senate. There was discussion of expanding the court during Franklin D. Roosevelt’s presidency and also during the 2020 presidential election. Nothing has come of court expansion, however.

The current court is fairly diverse in terms of gender, religion (Christians and Jews), ethnicity, and ideology, as well as length of tenure. Some justices have served for three decades, whereas others were only recently appointed by President Trump. Figure 13.9 lists the names of the nine justices serving on the Court as of June 2021 along with their year of appointment and the president who nominated them.

A chart titled “Appointments of the Current Supreme Court Justices”. A horizontal timeline runs through the center of the chart. Starting from the left, the first point marked on the line is labeled “Clarence Thomas, Appointed by George H. W. Bush in 1991”. The label is colored red to indicate conservative. The second point is labeled “Stephen Breyer, Appointed by Bill Clinton in 1994”. The label is colored blue to indicate liberal. The third point is labeled “John Roberts (Chief), Appointed by George W. Bush in 2005”. The label is colored red to indicate conservative. The fourth point is labeled “Samuel Alito, Appointed by George W. Bush in 2006”. The label is colored red to indicate conservative. The fifth point is labeled “Sonia Sotomayor, Appointed by Barack Obama in 2009”. The label is colored blue to indicate liberal. The sixth point is labeled “Elena Kagan, Appointed by Barack Obama in 2010”. The label is colored blue to indicate liberal. The seventh point is labeled “Neil Gorsuch, Appointed by Donald Trump in 2017”. The label is colored red to indicate conservative. The eighth point is labeled “Brett Kavanaugh, Appointed by Donald Trump in 2018”. The label is colored red to indicate conservative. The ninth point is labeled “Amy Coney Barrett, Appointed by Donald Trump in 2020”. The label is colored red to indicate conservative.
Figure 13.9 The current composition of the Supreme Court includes six conservatives and three liberals.

Currently, there are six justices who are considered part of the Court’s more conservative wing—Chief Justice Roberts and Associate Justices ThomasAlitoGorsuchKavanaugh, and Barrett—while three are considered more liberal-leaning—Justices Breyer, Sotomayor, and Kagan.

Image A is of Justice Sonia Sotomayor. Image B is of Justice Brett Kavanaugh. Image C is of Justice John Roberts.
Figure 13.10 Justice Sonia Sotomayor (a) is part of the liberal wing of the current Supreme Court, whereas Justice Brett Kavanaugh (b) represents the conservative wing. Chief Justice John Roberts (c) leads the court as an ardent member of its more conservative wing but has recently expressed concern over partisanship on the court. (credit a: modification of “Sonia Sotomayor, U.S. Supreme Court justice” by Collection of the Supreme Court of the United States, Steve Petteway/Wikimedia Commons, Public Domain; credit b: modification of “Associate Justice Brett M. Kavanaugh” by The Collection of the Supreme Court of the United States/Wikimedia Commons, Public Domain; credit c: modification of “John G. Roberts, Jr., Chief Justice of the United States of America (cropped version of official photo)” by Steve Petteway/Wikimedia Commons, Public Domain).


While not formally connected with the public the way elected leaders are, the Supreme Court nonetheless offers visitors a great deal of information at its official website.

For unofficial summaries of recent Supreme Court cases or news about the Court, visit the Oyez website or SCOTUS blog.

In fact, none of the justices works completely in an ideological bubble. While their numerous opinions have revealed certain ideological tendencies, they still consider each case as it comes to them, and they don’t always rule in a consistently predictable or expected way. Furthermore, they don’t work exclusively on their own. Each justice has three or four law clerks, recent law school graduates who temporarily work for the justice, do research, help prepare the justice with background information, and assist with the writing of opinions. The law clerks’ work and recommendations influence whether the justices will choose to hear a case, as well as how they will rule. As the profile below reveals, the role of the clerks is as significant as it is varied.

Supreme Court case selection process

The Supreme Court begins its annual session on the first Monday in October and ends late the following June. Every year, there are literally thousands of people who would like to have their case heard before the Supreme Court, but the justices will select only a handful to be placed on the docket, which is the list of cases scheduled on the Court’s calendar. The Court typically accepts fewer than 2 percent of the as many as ten thousand cases it is asked to review every year.[10]

Case names, written in italics, list the name of a petitioner versus a respondent, as in Roe v. Wade, for example.[11] For a case on appeal, you can tell which party lost at the lower level of court by looking at the case name: The party unhappy with the decision of the lower court is the one bringing the appeal and is thus the petitioner, or the first-named party in the case. For example, in Brown v. Board of Education (1954), Oliver Brown was one of the thirteen parents who brought suit against the Topeka public schools for discrimination based on racial segregation.

Most often, the petitioner is asking the Supreme Court to grant a writ of certiorari, a request that the lower court send up its record of the case for review. Once a writ of certiorari (cert. for short) has been granted, the case is scheduled on the Court’s docket. The Supreme Court exercises discretion in the cases it chooses to hear, but four of the nine justices must vote to accept a case. This is called the Rule of Four.

For decisions about cert., the Court’s Rule 10 (Considerations Governing Review on Writ of Certiorari) takes precedence.[12] The Court is more likely to grant certiorari when there is a conflict on an issue between or among the lower courts. Examples of conflicts include (1) conflicting decisions among different courts of appeals on the same matter, (2) decisions by an appeals court or a state court conflicting with precedent, and (3) state court decisions that conflict with federal decisions. Occasionally, the Court will fast-track a case that has special urgency, such as Bush v. Gore in the wake of the 2000 election.[13]

Past research indicated that the amount of interest-group activity surrounding a case before it is granted cert. has a significant impact on whether the Supreme Court puts the case on its agenda. The more activity, the more likely the case will be placed on the docket.[14] But more recent research broadens that perspective, suggesting that too much interest-group activity when the Court is considering a case for its docket may actually have diminishing impact and that external actors may have less influence on the work of the Court than they have had in the past.[15] Still, the Court takes into consideration external influences, not just from interest groups but also from the public, from media attention, and from a very key governmental actor—the solicitor general.

The solicitor general is the lawyer who represents the federal government before the Supreme Court: He or she decides which cases (in which the United States is a party) should be appealed from the lower courts and personally approves each one presented. Most of the cases the solicitor general brings to the Court will be given a place on the docket. About two-thirds of all Supreme Court cases involve the federal government.[16]

The solicitor general determines the position the government will take on a case. The attorneys of the office prepare and file the petitions and briefs, and the solicitor general (or an assistant) presents the oral arguments before the Court.

Image A is of Justice Thurgood Marshall. Image B is of Noel Francisco.
Figure 13.11 Thurgood Marshall (a), who later served on the Supreme Court, was appointed solicitor general by Lyndon Johnson and was the first African American to hold the post. Noel Francisco (b) was the forty-seventh solicitor general of the United States, starting his term of office in September 2017.

In other cases in which the United States is not the petitioner or the respondent, the solicitor general may choose to intervene or comment as a third party. Before a case is granted cert., the justices will sometimes ask the solicitor general to comment on or file a brief in the case, indicating their potential interest in getting it on the docket. The solicitor general may also recommend that the justices decline to hear a case. Though research has shown that the solicitor general’s special influence on the Court is not unlimited, it remains quite significant. In particular, the Court does not always agree with the solicitor general, and “while justices are not lemmings who will unwittingly fall off legal cliffs for tortured solicitor general recommendations, they nevertheless often go along with them even when we least expect them to.”[17]

Some have credited Donald B. Verrilli, the solicitor general under President Obama, with holding special sway over the five-justice majority ruling on same-sex marriage in June 2015. Indeed, his position that denying same-sex couples the right to marry would mean “thousands and thousands of people are going to live out their lives and go to their deaths without their states ever recognizing the equal dignity of their relationships” became a foundational point of the Court’s opinion, written by then-Justice Anthony Kennedy.[18] With such power over the Court, the solicitor general is sometimes referred to as “the tenth justice.”

Supreme Court’s processes and procedures

Once a case has been placed on the docket, briefs, or short arguments explaining each party’s view of the case, must be submitted—first by the petitioner putting forth the case, then by the respondent. After initial briefs have been filed, both parties may file subsequent briefs in response to the first. Likewise, people and groups that are not party to the case but are interested in its outcome may file an amicus curiae (“friend of the court”) brief giving their opinion, analysis, and recommendations about how the Court should rule. Interest groups in particular can become heavily involved in trying to influence the judiciary by filing amicus briefs—both before and after a case has been granted cert. And, as noted earlier, if the United States is not party to a case, the solicitor general may file an amicus brief on the government’s behalf.

With briefs filed, the Court hears oral arguments in cases from October through April. The proceedings are quite ceremonial. When the Court is in session, the robed justices make a formal entrance into the courtroom to a standing audience and the sound of a banging gavel. The Court’s marshal presents them with a traditional chant: “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! [Hear ye!] All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”[19]  It has not gone unnoticed that the Court, which has defended the First Amendment’s religious protection and the traditional separation of church and state, opens its every public session with a mention of God.

During oral arguments, each side’s lawyers have thirty minutes to make their legal case, though the justices often interrupt the presentations with questions. The justices consider oral arguments not as a forum for a lawyer to restate the merits of the case as written in the briefs, but as an opportunity to get answers to any questions they may have.[20]  When the United States is party to a case, the solicitor general (or one of the solicitor general’s assistants) will argue the government’s position; even in other cases, the solicitor general may still be given time to express the government’s position on the dispute.

When oral arguments have been concluded, the justices have to decide the case, and they do so in conference, which is held in private twice a week when the Court is in session and once a week when it is not. The conference is also a time to discuss petitions for certiorari, but for those cases already heard, each justice may state their views on the case, ask questions, or raise concerns. The chief justice speaks first about a case, then each justice speaks in turn, in descending order of seniority, ending with the most recently appointed justice.[21] The judges take an initial vote in private before the official announcement of their decisions is made public.

Oral arguments are open to the public, but cameras are not allowed in the courtroom, so the only picture we get is one drawn by an artist’s hand, an illustration or rendering. Cameras seem to be everywhere today, especially to provide security in places such as schools, public buildings, and retail stores, so the lack of live coverage of Supreme Court proceedings may seem unusual or old-fashioned. Over the years, groups have called for the Court to let go of this tradition and open its operations to more “sunshine” and greater transparency. Nevertheless, the justices have resisted the pressure and remain neither filmed nor photographed during oral arguments.[22]

This section is composed of text taken from Chapter 13.4 of American Government 3e and is used under a CC BY-NC-SA 4.0 licence. No changes have been made to the text nor original material added.

Judicial Decision-Making and Implementation by the Supreme Court

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The Warren Court in historical context

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The Warren Court: Race, gender, and religion in the post-war period

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The Warren Court’s reaction to state and federal legislation on Bill of Rights freedoms

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Civil rights cases from the early 1940s to the present

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The Supreme Court and a new agenda

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Review Questions

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  1. Constitutional rights foundation. (n.d.). Retrieved November 11, 2022, from
  2. Bolling v. Sharpe, 347 U.S. 497 (1954)
  3. Phyler v. Doe, 457 U.S. 202 (1982); F. S. Royster Guano v. Virginia, 253 U.S. 412 (1920)
  4. Rational basis test. (n.d.). LII / Legal Information Institute. Retrieved November 11, 2022, from
  5. Mississippi University for Women v. Hogan, 458 U.S. 718 (1982); United States v. Virginia, 518 U.S. 515 (1996)
  6. Rostker v. Goldberg, 453 U.S. 57 (1981)
  7. Johnson v. California, 543 U.S. 499 (2005)
  8. Korematsu v. United States, 323 U.S. 214 (1944)
  9. Black code of mississippi (25 November 1865) | encyclopedia. Com. (n.d.). Retrieved November 11, 2022, from
  10. “Supreme Court Procedures.” United States Courts. (March 1, 2016)
  11. Roe v. Wade, 410 U.S. 113 (1973)
  12. ”Rule 10. Considerations Governing Review on Certiorari.” Rules of the Supreme Court of the United States. Adopted April 19, 2013, Effective July 1, 2013.
  13. Bush v. Gore, 531 U.S. 98 (2000)
  14. Gregory A. Caldeira and John R. Wright. 1988. “Organized Interests and Agenda-Setting in the U.S. Supreme Court,” American Political Science Review 82: 1109–1128.
  15. Gregory A. Caldeira, John R. Wright, and Christopher Zorn. 2012. “Organized Interests and Agenda Setting in the U.S. Supreme Court Revisited.” Presentation at the Second Annual Conference on Institutions and Lawmaking, Emory University.
  16. “About the Office.” Office of the Solicitor General. The United States Department of Justice. (March 1, 2016)
  17. Ryan C. Black and Ryan J. Owens. “Solicitor General Influence and the United States Supreme Court.” Vanderbilt University. (March 1, 2016)
  18. Mark Joseph Stern., “If SCOTUS Decides in Favor of Marriage Equality, Thank Solicitor General Don Verrilli,” April 29, 2015.
  19. “The Court and its Procedures.” Supreme Court of the United States. May 26, 2015
  20. “Supreme Court Procedures.” United States Courts. (March 1, 2016)
  21. “Supreme Court Procedures.” United States Courts. (March 1, 2016)
  22. Jonathan Sherman. “End the Supreme Court's Ban on Cameras.” New York Times. 24 April 2015.


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