Preserving Dignity in Due Process

9 - Prisoner Disciplinary Proceedings

THE first part of this article discussed the<i>Horowitz</i>case and the procedural due process a school must follow before it can dismiss a student for academic reasons. Different from "procedural" due process is "substantive" due process, which is generally defined as the right to a decision that is not arbitrary or capricious. While the plurality opinion in<i>Board of Curators of the University of Missouri v Horowitz</i>, 98 SCt 948 (1978), only briefly and ambiguously referred to substantive due process, 98 SCt at 956, lower courts before and after<i>Horowitz</i>have held that under the US Constitution public institutions may not dismiss students for reasons that are arbitrary or capricious.<i>See generally Ewing v Board of Regents of the University of Michigan</i>, 559 FSupp 791, 797-798 (1983). The reluctance of courts to become involved is especially strong here, however, as academic expertise and discretion will be involved. In practice,

Due Process Challenges in Environmental and Natural Resources Law

Law & Psychiatry: Congress Restores the Americans With Disabilities Act to Its Original Intent.

INTRODUCTION VER THE PAST QUARTER century the federal judiciary, especially the Supreme Court, has assumed an increasingly important place in the American system of government. This development has been especially noteworthy since about 1950. Rarely, if ever, has the Supreme Court of the United States played a more extensive and significant role in the alteration of public policy, that is, in political change, than during the 1950's and the early 1960's. The impact of these changes although nationwide, has been, and will continue to be, most significant in the South. Patterns of segregation in public education, in public transportation, in privately owned public accommodations, and discrimination in voting rights and legislative representation, that were thought by most Southerners to be permanently fixed, have been broken and may even be largely eliminated before the end of the decade of the seventies. Now the courts have not done, and cannot do, this alone. But until July, 1963, they have played the role of innovator, in so far as the government was concerned, in all of these movements. Only after much brave and agonizing work on the part of the courts, have the executive and legislative branches of the federal government begun to move with decisiveness and vigor. It is the principal purpose of this essay to analyze in broad strokes the role of the federal courts, and especially of the Supreme Court, in effecting change in the public policy of the Southern states since 1950, in the above mentioned areas; and to set forth some of the probable long-range results of these judicial beginnings. Until now, as suggested, the legislative and executive branches of the national government and the state governments have left largely to the Supreme Court the task of finding new solutions to the long festering sores of racial discrimination and of deprivation and debasement of voting rights. The suggestion that courts participate in the making of public policy is still shocking to many Americans, and perhaps even to a

Crombag and colleagues contend that judicial reliance upon neat legal categorizations of intoxication-induced psychosis expands criminal fault. Intoxication jurisprudence adds yet another frontier to the law's search for conceptual neatness in determining criminal responsibility, even when scientific imprecision proves unavailing. Like Ward's unperturbable judge, the law frowns upon offenders manipulating the conditions of their offence into grounds to mitigate the punishment that is their rightful due. ‘Prior-fault’ doctrine governs the analogous principle in intoxication law by neutralizing the defense that would otherwise exculpate criminal behavior committed by an unreasoning mind. Where the accused voluntarily brings about their intoxication, prior-fault doctrine holds, courts may ‘impute fault’ from that voluntary ingestion to the consequences of their intoxicated conduct. Crombag and colleagues [2] worry that R v. Taj (2018) EWCA Crim 1743 widens the prior-fault doctrine's scope in England and Wales. Before Taj, prior-fault attached to criminal psychosis that manifested while a defendant was intoxicated, but not if the psychosis manifested after intoxication had already dissipated; yet the trial court in Taj imputed fault even absent ongoing intoxication, because the defendant's criminal psychosis followed so shortly after withdrawal from psychosis-inducing substance ingestion. Taj's conviction and 19-year sentence for attempted murder thus rested on an inculpatory exception for behavior committed during a period of legal intoxication when Taj was clinically not intoxicated. The slippage between legal and clinical categories that Crombag and colleagues observe in prior-fault doctrine also bedevils much else in criminal law. Just as Taj complicates determining whether a defendant is ‘intoxicated’, the law's demand for bright lines often finds science's messiness frustratingly unavailing [3]. For defendants, the consequences of that slippage are bleak. Take, for example, the broader class of questions concerning whether a defendant commands the cognitive and volitional capacities that criminal responsibility requires. Any such abstraction from the jurisprudence of intoxication to criminal capacity more generally corroborates Crombag and colleagues’ prediction: when clear legal thresholds rest on uncertain clinical criteria, the ensuing ‘concept-creep’ risks over-criminalization. American death penalty jurisprudence showcases the challenges that arise when courts circumscribe tidy legal categories around indeterminate scientific constructs. When the US Supreme Court set aside Florida's IQ threshold for deciding a capital defendant's intellectual (dis)ability in favor of a more clinically informed standard, subsequent practice fell dispiritingly short of the protective restriction on the death penalty that the Supreme Court envisioned [4]. Rather than displaying caution in the face of scientific imprecision, lower courts in many States across the United States instead re-interpreted the science so as to operationalize categories of disability neatly—and rarely so in the defendants' favor. The jurisprudence of juvenile status tells a similar story in the negative. There, the law's search for clarity where science provided none contributed to the US Supreme Court's stepwise progress toward abolishing the death penalty for crimes committed as children. The Supreme Court recognized that wading deeper into complicated developmental science to determine whether a child's inchoate cognitive capacities bore the trappings of criminal responsibility would have been a fool's errand [5]. It therefore concluded that outright abolition spared lower courts untold errors yet to come. Taj thus fits into a long-standing doctrinal pattern of ‘concept-creep’, observable even in far-removed domains of law, that the collision of law and science introduces. The trial court in Taj imputed fault from the defendant's withdrawal from substance ingestion to his criminal psychosis the following day, and in so doing it trod upon shaky toxicological ground. The precedent Taj sets promises conceptual neatness, but is likely to deliver little. As Crombag and colleagues forewarn, when science offers shaky insights, courts over-extend the law to defendants’ detriment; and because reality is rarely as straightforward as stories such as Artemus Ward's would have us entertain, perhaps the prudent course would instead point in precisely the reverse direction altogether. None.

This article examines the benefits and tradeoffs for African American professional educators and students that resulted from the profound Brown v. Board of Education decision. It addresses the impact of the Brown decision immediately after it was rendered for African American educators and students and the legacy of Brown for both of these groups during the previous 50th years. The article also presents the findings from a study of 36 current and recently retired African American high school principals in North Carolina and Alabama to determine their perceptions of the legacy of the Brown decision for both African American educators and high school students. Additionally, the article presents the views of a small sample of these principals who were interviewed regarding the degree to which African American high school students are currently involved in student leadership roles and school activities. Results of the study indicated that the vast majority of the respondents believed that Brown had benefited both African American educators and students; however, they indicated that it had some unintended consequences such as a precipitous drop in the number of African American teachers to serve as role models, competent professionals, and authority figures for students-both Black and White. Furthermore, they perceive that, particularly in integrated high schools where White students are in the majority, the curriculum usually does not adequately address the history, contributions, culture, and experiences of African Americans. Moreover, the principals perceive that African American students in fully integrated schools, with few exceptions, are underrepresented in school leadership roles and are often reluctant to run for elective leadership positions because they usually do not believe they can win. INTRODUCTION On May 17, 1954, at 12:52 p.m., the United States Supreme Court rendered its momentous decision in the case of Brown v. Board of Education of Topeka, Kansas (1954). The fundamental public policy that the court unanimously ruled upon was straightforward: segregated schools (established and maintained by state action) were inherently unequal. The court clearly said, through its ruling, that but was, in fact, a contradiction in terms-official state sanctioned segregation was a violation of the protection clause of the 14th Amendment of the Constitution, which forbids any state from making or enforcing any laws which deny any person within its jurisdiction the protection of the laws. Prior to the Supreme Court's ruling, dual and segregated school systems had been established and maintained for African American and White students. These schools systems were primarily in the southern states where Jim Crow laws had prevailed after reconstruction. Ironically, the rationale for establishing and maintaining de jure segregated schools had been also formalized by the United States Supreme Court in another momentous decision, Plessy v. Ferguson, in 1896, which legitimized the principle of separate but equal (1896). The case evolved from a suit filed by Homer Plessy, a Black man who had filed suit after he had initially been fined for sitting in the White section of a railroad car in Louisiana. His case questioned the constitutionality of an act of the General Assembly of the State of Louisiana, passed in 1890, providing for railway carriages for the White and colored races. Plessy contested the decision all the way to the United States Supreme Court, which upheld the state's but doctrine. In the Plessy decision, the Supreme Court gave racial inequality and segregation an air of legitimacy for over a half century. Moreover, it served to institutionalize racial segregation and social norms, particularly in me South, in both public and private arenas. Not only did the decision condone and maintain racially railroad cars and other modes of public transportation, it virtually assured segregation in schools and school activities, courthouses, waiting rooms, public beaches, swimming pools, restaurants, bathrooms and drinking fountains. …

Goldberg v. Kelly: The Case, the Clerk, and the Justice Michael Nelson (bio) During his nearly thirty-four years on the Supreme Court, Justice William J. Brennan wrote 461 majority opinions, including those in landmark cases such as Baker v. Carr, New York Times v. Sullivan, Cooper v. Aaron, Frontiero v. Richardson, and Texas v. Johnson.1 Yet Brennan described his opinion for the Court in Goldberg v. Kelly as “probably the most important thing that came out of these chambers from me.”2 Brennan was not alone in that assessment. According to Stephen Breyer, who is perhaps as deeply versed in the subject as any justice in the history of the Court, “Goldberg v. Kelly revolutionized administrative law.”3 Yale Law School Professor Jeffrey Mashaw described it as the opening salvo in a “due process revolution.”4 Henry Friendly, the chief judge of the Second Circuit Court of Appeals, suggested that the case caused “a greater expansion of procedural due process. . . than in the entire period since the ratification of the Constitution.”5 Legal analyst Jeffrey Toobin wrote, “Goldberg v. Kelly is one of those cases that is so big, its influence so persuasive, its implications so immense, that it is difficult to get a firm grip on it.” Toobin recalled “that I was assigned to read the case in no fewer than five different classes in law school: Constitutional Law (what due process means and who is entitled to it and for what?); Property (do welfare benefits count as property?); Civil Procedure (how much process is ‘due’ process?); Administrative Law (how much process is ‘due’ process—specifically?); and Law of the Welfare State (that course was basically about Goldberg v. Kelly).”6 The Case The Goldberg in Goldberg v. Kelly was Jack Goldberg, New York City’s Commissioner of Welfare. He was appealing a lower court ruling in favor of John Kelly and nineteen other welfare recipients. Their benefits were terminated by their caseworkers for various reasons, and their only recourse was to file a written appeal to their caseworker’s supervisor. Even if they made such an appeal, [End Page 162] their benefits would remain cut off unless and until they prevailed. Welfare owed its existence to a patch-work of state and federal laws, the most important of which was the Social Security Act of 1935. In addition to its most prominent feature—old-age insurance—the act provided modest financial support for other categories of people, including dependent children. Commonly referred to as welfare, this support came in the form of Aid to Families with Dependent Children (AFDC), a program jointly funded by the state and federal governments to provide financial support for single-parent households headed by unmarried, divorced, or widowed women. Widows featured prominently among early beneficiaries, but over time the typical AFDC recipient was more likely to be a politically less sympathetic unwed mother. Most states responded to this change by authorizing local program administrators to deny or cut off benefits to families in which, for example, a man was living in the home. But New York, an unusually generous state, provided additional payments to eligible recipients through its Home Relief program to help cover additional housing, clothing, and certain other needs. The origin of Goldberg v. Kelly lay mostly with lawyers at New York City’s Mobilization for Youth (MFY) Legal Unit and Columbia University’s Center on Social Welfare Policy and Law (CSWPL). For years, such legal representation as AFDC beneficiaries were able to obtain when their benefits were terminated or reduced usually had come from Legal Aid Society lawyers, whose limited number, narrow mission, and slender resources restricted them to helping individuals navigate existing laws and regulations rather than challenging the laws and regulations themselves. According to legal scholar Martha F. Davis, “Despite eighty-nine years of representing the poor, Legal Aid lawyers had never appealed a case to the Supreme Court.”7 In 1964, however, MFY expanded its focus on “organizing the unaffiliated—the lower fifth of the economic ladder” by creating a unit to mount legal challenges to “social policy and administrative practices rather than to supply legal help to clients.”8 One year later, Columbia’s...

Given the uniqueness of the judicial system in the United States of America and the role of the Supreme Court in shaping the country’s entire judicial system, the authors devoted an article to an analysis of the Supreme Court of the United States as the body that makes up the country’s Basic Law, the Constitution. Taking into account the specificity of one of the oldest written Constitutions of the world, it was appropriate to understand the mechanism of its creation, the powers of the body, which creates it also in the characteristics of this body, which the authors of the article have implemented. The authors analyzed a number of scientific works of both domestic and foreign scholars, the legal literature of the United States of America, the provisions of the Constitution, and fundamentally analyzed the legal system of the United States, and in this way the authors reached the correct conclusions. The history of the creation of the Supreme Court of the United States, its functions and powers were also analysed. The stages of the creation of the Constitution and the procedure for amending it were studied; the evolution of the interpretation of various provisions and of the amendments to the Constitution was studied; The role of the Court’s case law in the creation of the Constitution has been clarified; a number of constitutional precedents have been examined, particularly those that have influenced the interpretation of the V Amendment to the United States Constitution. The term «living Constitution» had been interpreted and explained, what the phenomenon was&#x0D; and what role the Supreme Court played. Sufficient attention has been paid to the individual thoughts and views of Supreme Court judges in the various periods of the institution’s existence. Special attention was also devoted to the analysis of the content of the concept of “constitutional control”, its interpretation in a broad and narrow sense. In the conclusions, the authors stress the principal aim of the founding parents, what meaning was given to the provi-sion of the Constitution, and note the impact of the Court on the State, the social system and the legal status of the individual. In particular, the authors note that the Supreme Court of the United States of America has established effective and acceptable jurisprudence for the Ukrainian judicial system, which has provided the basis for this study.

This chapter examines the constitutional duty of mental health professionals to treat clients and coworkers with due process and equal protection. It explains how the Fifth and Fourteenth Amendments protect individuals’ rights to life, liberty, and property. It also outlines how these protections apply when public or government-contracted professionals engage in state action. The chapter explores both procedural due process, which ensures fairness through notice and hearing, and substantive due process, which safeguards fundamental rights from unwarranted government intrusion. It discusses how privatization complicates accountability and limits constitutional claims, emphasizing the importance of understanding when private providers may be considered state actors. Finally, the chapter urges all mental health professionals, regardless of employment setting, to apply constitutional principles in practice decisions to uphold legal and ethical responsibilities.

The criminal liability of the President for acts committed in the exercise of his office covers a complex of issues related to all areas of the legal system. Indeed, the criminal law aspects of the grounds and manner of criminal liability are complemented by constitutional elements. The special position and powers of the President co-determine the scope of responsibility. The President’s actions that fall within the limits of his powers and duties remain, for obvious reasons, outside the scope of repressive responsibility. The scope of presidential responsibility is also co-determined by institutions categorised as instruments of corrective justice, including states of necessity and circumstances excluding fault. This issue can be analysed from a purely penal perspective or it can also take into account elements of constitutional regulation. The US Supreme Court’s approach was based on yet another perspective. The elements that determine the limits of the President’s criminal liability for acts committed in the exercise of his office are sought by the Supreme Court in its reconstruction of the principle of separation of powers. Pointing to the presidential powers set out in Article II of the US Constitution, it assumes that they delimit the area of independent and exclusive powers, within the scope of which Congress may not interfere by means of legislation. By virtue of the will of the legislature thus reconstructed, Congress lacks the authority to enact laws providing for the criminal liability of the President in this respect. Consequently, the courts also lack the competence to oversee such cases. The above assumptions form the basis for the US Supreme Court to reconstruct from the US Constitution the absolute immunity of the President in terms of the exclusive and preclusive competences set out in the US Constitution. In addition, the Supreme Court also derives from the US Constitution the construction of presumptive immunity, which covers presidential actions in the area of shared powers with Congress. Although, in this respect, the Constitution does not deprive Congress of the power to legislate, including the power to define the grounds for the President’s criminal liability, the bring to criminal charges against the President is contingent on a demonstration that this will not unduly interfere with the efficiency and authority of the executive branch. By locating the grounds for the reconstruction of presidential immunity at the level of constitutional provisions relating to the principle of separation of powers, the approach presented by the Supreme Court transforms criminal law analyses into systemic constitutional considerations. In this way, the Supreme Court’s decision on presidential immunity is part of the debates concerning the nature of the constitutional principle of the separation of powers, the court’s competence to rule on constitutional issues, the delimitation of the scope of competences of the authorities, and, finally, the disputes concerning the scope of the Court’s cognition in the sphere of matters that are strongly entangled politically and morally. The US Supreme Court’s decision on presidential immunity was based to a significant extent on the jurisprudential concept (doctrine) of the separation of powers. The essential line of argumentation is based on the Supreme Court’s reconstruction of the content, meaning and function of the principle of separation of powers, which forms the basis for the position relating to the scope and type of presidential immunity. At the same time, in the sphere related to absolute immunity, one can see in it a reference to the concept (doctrine) of the republican separation of powers. The exclusion of the possibility of the courts’ interference in the area of competence regulated by Article II of the US Constitution means that the assessment of the President should take place at the level of constitutional responsibility in the impeachment procedure. In the area covered by the construction of impeachment, by confirming the competence of the courts to carry out a criminal assessment, it supplements the prerequisites for liability with elements reconstructed from the Constitution. It thus expresses restraint in the sphere of judicial competence on matters relating to constitutional and political aspects. It does not decide the question of immunity unequivocally, leaving a considerable area of discretion, leaving a space that can be filled by subsequent decisions of the federal courts on this issue.

Essentially, the United States Supreme Court plays a critical role in setting precedents that are followed by lower federal courts and state courts. This implies that faulty decision by the Supreme Court has a ripple effect, characterized by adversities in the delivery of justice across the board. Over the years, the United States Supreme Court has made various landmark rulings, some of which have been regarded as the worst decisions ever, while others have been deemed exemplary. From the 1900s and to around the mid-1900s, the United States Supreme Court made various rulings, the majority of which touched on racial segregation and discrimination of ethnic minorities. The rulings set critical precedence and gave guidelines to states with respect to the formulation and implementation of state laws. Understanding such rulings can greatly shed light regarding the historical background of the United States judicial system and what can be done to foster justice and equality in the future. This study entailed a qualitative content analysis research design to study and analyze six main cases: Pace v. Alabama (1883), Dred Scott v. Sandford (1856), Loving v. Virginia (1967), Plessy v. Ferguson (1896), Brown v. Board of Education, Topeka, Kansas (1954-55) and Ozawa v. United States (1922) . The results of the content analysis are presented. The content analysis is based on the statements and their implicit messages. Keywords: The United States Supreme Court landmark cases, racial discrimination, ethnicity, racial profiling, landmark court decisions, U.S historical cases. DOI: 10.7176/JLPG/110-03 Publication date: June 30 th 2021

“How Do You Feel About Writing Dissents”? Thurgood Marshall’s Dissenting Vision for America CHARLES L. ZELDEN On October 2, 1967, with his family, friends, and admirers and President of the United States Lyndon B. Johnson in atten­ dance, Thurgood Marshall stood up in the chamber of the Supreme Court of the United States, put his hand on a Bible, and swore to “administerjustice without respect to persons, . . . [to] do equal right to the poor and to the rich, and that [he would] faithfully and impartially discharge and perform all the duties incumbent upon [him] . . . under the Constitution and laws of the United States.” With these words, Marshall became the nation’s newest, and first African American, Associate Justice ofthe United States Supreme Court. A clearly emotional Marshall confessed at the time how “he wished his daddy could have been there.” Still, Marshall added, hejust knew that his father “was on some street comer in heaven shaking his finger and saying, ‘I knew my boy would do it.’”1 Without doubt, this was one ofMarshall’s proudest days. Only his victory as a lawyer in Brown v. Board of Education (1954) came close to generating in him the feelings of accomplishment and professional vindication broughtby his elevation to the Supreme Court. Marshall’s ascent to the peak of the legal profession filled him with a profound feeling of satisfaction. As he later explained to biographer Carl T. Rowan, “How did I feel? Hell, like any other lawyer in America would feel. Real proud—because there is no greater honor a lawyer can get. I felt especially great because I knew President Johnson was using me to say something important to the nation.”2 Marshall’s feelings ofpride and achieve­ ment did not last, however. As the ideological makeup of the Court and the political culture of the nation shifted over time to the right, Marshall increasingly became isolated from, and then marginalized by, his fellow Justices; with each passing year, a frustrated, angry, and often bitter Marshall saw the landmarks ofhis life’s work—the social, political, economic, and constitutional changes that he had helped 78 JOURNAL OF SUPREME COURT HISTORY bring about at such great cost as the head ofthe National Association for the Advancement of Colored People (NAACP) Legal Defense and Education Fund, Inc. (LDF)—being circum­ scribed, abandoned, or reversed. By the end of his tenure on the Court, Marshall, by now cantankerous and belligerent, would ask prospective law clerks a simple yet revealing question by which to determine their suitabil­ ity to be one of his clerks: “How do you feel about writing dissents?”3 That bitter question was not one that Marshall had ever expected to have to ask. The Supreme Court that he joined in the fall of 1967 was filled with familiar and philo­ sophically compatible friends and allies. Marshall and Chief Justice Earl Warren had a close relationship based on mutual admira­ tion, respect, and genuine friendship. In William J. Brennan, Jr., Marshall found a friend and ally whose worldview and, more important, whose understanding of law and the Constitution, harmonized perfectly with his own. Although his relationships with the other Justices were not always as congenial and familiar as those with Warren and Brennan, Marshall nonethelessjoined a Court with a clear liberal majority, one that his appointment as Justice strengthened. For the next several years Marshall regularly voted in the majority, participating in the Supreme Court’s ongoing redefinition of individual and group civil rights and liberties. He joined majorities in such landmark cases as Green v. County School Board of New Kent County (1968), in which a unanimous Supreme Court charged Southern school boards “with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination is eliminated root and branch”;4 Tones- v. Alfred H. Mayer Co.(1968),5 which applied the Thirteenth Amendment and the 1866 Civil Rights Act to preclude all forms of racial discrimination in the sale or leasing of private property, including, as in that particular case, when the discrimination was done entirely by a private citizen with no government support or action; Allen v. BoardofElections...

There is legal chaos in the national Superfund. The Supreme Court reversed decisions of eleven federal circuit courts in United States v. Atlantic Research Corp. There is no instance in modern Supreme Court history where the Court reversed every federal circuit court in the country, as it did in Atlantic Research. The Supreme Court’s reversal was through a unanimous decision. This was extraordinary: It not only reversed the entire legal interpretation of one of America’s most critical statutes, but also re-allocated billions of dollars among private parties. The Supreme Court, when it rendered its decision, seemed to be rectifying a bottleneck in Superfund remediation of hazardous waste. However, in the decade since this Supreme Court decision, several federal trial and circuit courts have circumvented the Supreme Court command. This article illustrates how the lower federal courts have done this without violating Article III of the Constitution, by re-defining a one-word term. The practical impact has been chaos in hazardous substance remediation across the U.S., affecting an estimated 600,000 contaminated waste sites. There are huge dollar impacts: addressing the 350,000 remaining contaminated sites in the U.S. would cost up to one-quarter trillion dollars, or an expenditure of $6-8 billion annually. This Article analyzes how the lower federal courts have circumvented the Supreme Court decisions, with particular focus on decisions and legal prestidigitation in the most recent four years. This lower court inversion of the law is without much basis in law, and resurrects exactly what the Supreme Court thought it had overruled unanimously. What transpired in enforcement in the lower courts is not what the Supreme Court’s opinion contemplated. This Article examines the method by which the lower federal courts have created an ongoing legal mechanism to circumvent the most important Supreme Court holding in a critical area of the economy.

The purpose of the article on the topic of judicial lawmaking in the USA, which attempts to invade the educational process and intensify the study of the History of State and Law of Foreign Countries, is devoted to the U.S. Supreme Court – the founder of constitutional justice and one of the pillars in the system of separation of powers. This is a unique judicial institution with an exceptional degree of influence, about which America’s famous political writer Alexis do Tocqueville stated that “never before have any people had such a powerful judicial authority”. The purpose of the research is to identify the features of the law-making activity of the US Supreme Court, since judicial law making in science remains an unsolved problem. To achieve this goal, the methods of scientific research were used, in the form of general methods, complex special methods of jurisprudence. For the reader, the phenomenon of the us Supreme Court is interesting in several aspects. First, from the point of view of the evolution of American law and the judicial system in all its dynamics and contradictions. Secondly, in terms of the implementation of judicial activity, complex thought processes of finding the necessary precedents and arguments in a particular case, achieving (if possible) a compromise between the judges-colleagues. Judicial activity should be interpreted not only as based on law, but also subject to ideological and political influences. The results of the research are very important for researchers of the legal system of foreign countries, and to look at the us Supreme Court through the eyes of American history as an institution that has the potential to enter into conflict with both the legislative and Executive authorities. On the other hand, it is important to understand the logic of filling vacancies in the Supreme Court by the Executive branch. In the ongoing in this country, searches the reasons for negative political and legal phenomena attention is drawn to the interpretation of the Federal Constitution, the U.S. Supreme Court, in General, the activities of the court performing a legislative function, it is unusual and constitutional loose. However, many issues remain insufficiently studied, including the role of the US Supreme Court in constitutional law making, and the phenomenon of judicial law making itself. Key words: lawmaking, jurisdiction, Supreme Court, USA, legislature.