Supreme Court, U.S.

Supreme Court, U.S. Article III of the Constitution provides that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as Congress may from time to time ordain and establish.” The First Congress created a Supreme Court and lower tribunals in the Judiciary Act of 1789; the three‐tiered system, with some modification, remains the basis for the modern federal court system.

Overview.

The Judiciary Act created a Supreme Court of six judges, a chief justice and five associate justices. It also created thirteen district courts, one for each state, and an intermediate court of appeals, consisting of the judge for the district court and two justices of the Supreme Court riding circuit. In addition, the Act spelled out the jurisdiction of the federal courts, and in the very important Section 25 gave the Supreme Court appellate jurisdiction over federal questions arising in state courts. It is this provision, allowing the Supreme Court to review state court decisions touching on federal questions, that is the key to enforcing Article VI, which makes the Constitution the supreme law of the land.

Since then, the basic structure of the federal judicial system has been modified slightly. Membership of the Supreme Court increased; during the Civil War it reached ten, but afterward it dropped to nine, where it has remained. Judges are appointed for life, and serve during “good behavior.” The only means for removing a judge is through impeachment. One justice of the Supreme Court, Samuel Chase, was impeached in 1804, but was not convicted.

The Supreme Court hears appeals in cases of original jurisdiction (such as suits between two states) and has appellate jurisdiction from both the state and federal systems. In the federal system, cases usually originate in a district court, and then may be appealed to one of the Circuit Courts of Appeal. From there plaintiffs may appeal to the Supreme Court, but the so‐called Judges Bill of 1925 gave the Court almost complete control over its docket as well as the power to limit the number of cases it accepts for review. That number, which ran in the 150 range in the 1970s, was steadily reduced thereafter, so that by the mid‐nineties the Court was giving a full hearing to fewer than eighty cases a year.

The Court will also hear appeals of final decisions from the highest state court, if a federal constitutional issue is involved. If the case can be resolved on adequate state statutory or legislative grounds, the Court will not grant review. For a case to be accepted for review, the “rule of four” applies, by which four members of the Court must agree that review is warranted. The Court's caseload consists primarily of two types of litigation, one involving constitutional questions, in which the Court's word is final, and the other involving interpretation of federal legislation, in which Congress can in effect overrule the justices by revising the statute.

The Marshall Court.

In its first ten years the Supreme Court enjoyed little popular esteem, and the first Chief Justice, John Jay, resigned because he believed the court would never become a coequal partner in government with the legislative and executive branches. That began to change with President John Adams's appointment of John Marshall as chief justice, a position he held from 1801 to his death in 1835.

Marshall established one of the key powers of the Court in Marbury v. Madison (1803), in which he ruled a portion of the 1789 Judiciary Act unconstitutional, thus claiming for the Court not only the power of judicial review over federal legislation, but also establishing the Court as the ultimate interpreter of the Constitution. In a series of decisions over the next three decades, Marshall helped to clothe the new government with extensive powers, carrying out the vision enunciated by the Federalists in the 1790s.

The Court gave a broad reading to the Contracts Clause in Fletcher v. Peck (1810), and further expanded its reach in Dartmouth College v. Woodward (1819), thus protecting private property interests against state legislative power. In McCulloch v. Maryland (1819), Marshall relied on the argument Alexander Hamilton had made in defense of the first Bank of the United States and elevated it to a constitutional rule, that federal creations made under a legitimate exercise of constitutional power are immune from state regulation or taxation. Marshall carried the reach of the Commerce Power furthest in Gibbons v. Ogden (1824), in which he strained the meaning of the federal coastal licensing law to strike down a New York‐sponsored steamboat monopoly.

Gibbons marked the high point of the Marshall Court's expansive nationalism. In the next decade the Marshall Court proved more amenable to states' rights interests, as the Chief Justice fought to blunt growing criticism of the judiciary and moves to restrict its powers over the states. In Wilson v. Blackbird Creek Marsh Co. (1829) he ceded substantial power to the states over interstate waterways, and in Barron v. Baltimore (1833) the Court ruled that the Bill of Rights did not apply to the states. When the Court did try to limit state powers, as in the Cherokee removal cases (1831 and 1832), Georgia ignored the rulings and President Andrew Jackson supposedly sneered, “The Chief Justice has made his decision; now let him enforce it.”

The Taney Court and Beyond.

When Jackson named Roger B. Taney chief justice in 1835, many expected the nationalist tone of the Court to change to a more states' rights orientation, and in some cases it did. Taney and his colleagues proved more sympathetic to local interests, and in the famous case Charles River Bridge v. Warren Bridge (1837) gave the states extensive leeway over commercial regulation and contracts. This decision also represented a shift in sympathy for new entrepreneurial capital as opposed to the more established capitalism favored by the Federalists. In Cooley v. Board of Wardens (1852), the Court pronounced a commonsense rule that, while leaving the federal commerce power supreme, nonetheless gave states far greater leeway to act.

But the Taney Court was in many ways as nationalistic as its predecessor, and in a number of cases reaffirmed or only slightly modified Marshall Court precedents. Moreover, in Luther v. Borden (1849), Taney introduced the “political question” doctrine, allowing the Court to evade issues that, in its opinion, belonged more to the realm of politics than law.

Unfortunately, Taney's reputation, as well as that of his Court, is so bound up with its decisions on slavery that much of its other work has been unappreciated. Taney, a firm believer in both slavery and the right of states to protect the institution, went out of his way in Scott v. Sandford (1857) not only to uphold slavery, but also to deny the federal government any power to regulate or limit it.

That case wounded the prestige of the Court until after the Civil War, a conflict in which the Court played a very limited role. As in most wars, the justices delayed hearing potentially divisive issues until after the fighting had ended. Although in Ex parte Milligan (1866) the Court, now headed by Salmon P. Chase (1808–1873, chief justice 1864–1873) ruled that the federal government could not resort to military tribunals in areas where civilian courts remained open, for the most part the Court endorsed nearly all of the actions taken by Congress and the Executive during the war. Fear that the Court might invalidate some of its Reconstruction measures led Congress to restrict the Court's jurisdiction in some areas, but these restrictions proved temporary and ephemeral. Moreover, in Texas v. White (1869), the Court put its imprimatur on congressional Reconstruction, and held the secession of the southern states to have been invalid at all times.

The Court as Protector of Property Rights.

By then, national attention had shifted to the great postwar economic expansion underway, and the constitutional issues it raised. The Supreme Court is commonly referred to by the name of its chief justice—the Marshall Court, the Taney Court—and in some instances the chief did exert a commanding influence. But the associate justices, the so‐called “side judges,” also can have great influence—sometimes greater influence than that of the chief. This proved the case in the latter nineteenth century when Chief Justices Morrison R. Waite (1816–1888, chief justice 1874–1888) and Melville W. Fuller (1833–1910, chief justice 1888–1910) were overshadowed by some of their associates, such as John Marshall Harlan and, above all, Stephen J. Field (1816–1899).

Field and his ideas came to dominate the Court, and his fierce protection of property rights against state regulation of any sort, complete laissez‐faire, strongly influenced the Court until the 1930s. The new industrialists looked to the courts to protect them from reformers who wanted to regulate private property in the name of the public good or to protect labor from the harsh conditions of mine and factory.

In Munn v. Illinois (1877), over a strong protest from Field, Chief Justice Waite held that states could regulate the rates charged by common carriers. But in the next two decades Field won a majority to his view that states had little or no power to regulate rates or to interfere in any way with vested property rights. The notion of the judiciary as the defender of property as against populist efforts to reform through regulation shaped the Court's decisions from the late nineteenth century until 1937. In a strong dissent in Lochner v. New York (1905), Oliver Wendell Holmes Jr. sharply criticized the Supreme Court's hostility to worker‐protection legislation in the name of property rights; the Constitution, he insisted, “is not intended to embody a particular economic theory, whether of paternalism or of laissez faire.” The Court did, in fact, approve some Progressive‐era laws protecting women and children, most notably in Muller v. Oregon (1908), in which attorney Louis Brandeis, defending Oregon's right to regulate the hours of working women, presented a brief full of sociological data. (Brandeis himself was appointed to the Supreme Court in 1916 by President Woodrow Wilson, and confirmed despite fierce conservative—and in some cases anti‐Semitic—opposition.) Nevertheless, in Adkins v. Children's Hospital (1923), the high court make clear its position that in all circumstances government regulation of the economy would be the exception, and laissez‐faire the rule.

As in the Civil War, World War I again raised the issue of the government's right to limit First Amendment free‐speech protections. Writing for the majority in Schenck v. United States (1919), Justice Holmes upheld the wartime Espionage Act, but enunciated the principle that only a “clear and present danger” could justify restraints on free speech. In a notable dissent in Abrams v. United States (1919), involving the wartime Sedition Amendment, Holmes eloquently called for “free trade in ideas.”

The Supreme Court in the New Deal and Civil Rights Eras.

When Depression struck in 1929, and especially after Franklin Delano Roosevelt's New Deal began trying to meliorate its effects, reformers hit a stone wall of conservatism on the high court. A bloc of four— Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter—opposed any and all reform measures, often securing Owen J. Roberts as their fifth vote.

To remove what he saw as an unwarranted block to popular demands for reform, Roosevelt proposed a bill in February 1937 that would have allowed him to name up to six more justices on the Court. The public reaction to Roosevelt's so‐called Court‐packing plan eventually led Congress to reject it. But the overwhelmingly negative public response to the Court's reactionary stance hastened the retirement of the conservatives and the appointment of justices thoroughly sympathetic to the New Deal and state efforts to reform the economy. After several decades of a cramped view of the Commerce Clause, Justice Robert Jackson in Wickard v. Filburn (1942) gave Congress such an expanded view of that power that it would be a half century before the Court would invalidate a federal law as having exceeded the commerce power.

In fact the Court's agenda had begun to change in the 1920s, as more and more cases involving individual rights rather than property rights came up for review. Louis Brandeis had suggested that the Fourteenth Amendment's Due Process Clause included more than property rights, and by 1926 the incorporation of the protections included in the Bill of Rights into the Due Process Clause had begun, and in a series of cases that de facto overruled Barron v. Baltimore, the Court applied to the states the Constitution's guarantees of freedom of speech and freedom of the press and criminal‐procedure protections.

In 1938, in the otherwise obscure case United States v. Carolene Products, Justice Harlan Fiske Stone suggested in footnote four that the Court should apply higher standards of review to those issues involving individual rights or affecting discrete and insular minorities. During the 1940s and 1950s, and especially during the chief justiceship of Earl Warren, which began in 1953, the Court began to do this in earnest, first elaborating the meaning of the speech clause (despite some set‐backs during the Cold War), and then undertaking to make people of color full citizens. A series of cases led up to the Warren Court's epic decision in Brown v. Board of Education (1954) that reversed the holding in Plessy v. Ferguson (1896) and other cases that permitted states to impose an apartheid system separating and humiliating blacks. In the years that followed, the Court upheld one challenge after another to laws and customs that segregated people on the basis of color.

The Warren Court did not invent the rights revolution, but many of the most famous cases expanding the meaning of civil rights and civil liberties were decided between 1953 and 1969, when Warren retired. Mapp v. Ohio (1961) expanded the protections of the Fourth Amendment, while Gideon v. Wainwright (1963) and Miranda v. Arizona (1966) ensured that all criminal defendants would have attorneys and protected the rights of persons in police custody. Griswold v. Connecticut (1965), involving the distribution of birth‐control information, established a right to privacy, while Reynolds v. Sims (1964) transformed the American political scene by requiring states to reapportion their legislatures on the basis of “one person, one vote.”

The rights revolution once again underscored the Court's co‐equal role alongside the executive and legislative branches. Not all Americans welcomed this judicial activism, and many conservatives believed the Court had gone too far in its solicitude for minorities and accused criminals. Richard M. Nixon, in the 1968 electoral campaign, promised that if elected he would appoint a “law‐and‐order” judiciary, and yet the rights revolution continued under Chief Justice Warren Burger (1907–1995, chief justice 1969–1986) thanks in large measure to the skill and influence of Justice William J. Brennan Jr. (1906–1997). The Burger Court handed down one of the most controversial decisions of the twentieth century, Roe v. Wade (1973), establishing a woman's right to an abortion, and struck down many legal barriers that had made women second‐class citizens. While it modified some Warren Court rulings, the Burger Court generally confirmed the growing rights consciousness in the country.

Recent Trends.

That began to change in 1986, when Burger retired and President Ronald Reagan named William H. Rehnquist (1924–) chief justice, and Antonin Scalia to serve alongside him. These two appointments, as well as three others made by Reagan and his successor George Bush, gave the Court a more conservative cast than it had had in fifty years. While some conservatives cheered the efforts to cut back on constitutionally protected rights, others were dismayed. Whatever the lasting effect of the Rehnquist era, it seemed probable that just as the pendulum swung away from conservatism in the 1930s and away from a liberal rights consciousness in the 1970s, this latest effort to push the constitutional balance far in one direction would elicit a countervailing trend in the opposite direction.

For its first 178 years, the Supreme Court consisted exclusively of white males. This changed in 1967 when President Lyndon B. Johnson elevated the African‐American civil‐rights leader Thurgood Marshall to the high court. The first woman justice, Sandra Day O'Connor, was appointed by President Ronald Reagan in 1981. She was joined in 1993 by Ruth Bader Ginsberg, a Clinton appointee.

The Supreme Court played a central and controversial role in the disputed presidential election of 2000. The Democratic candidate Al Gore won the popular vote by comfortable 540,000-vote margin, but the Electoral College outcome depended on the result in Florida, where defective voting machines, confusing ballots, and other irregularities produced a result too close to call. After much maneuvering by both sides, Florida's Republican attorney general prepared to certify George W. Bush as the winner. But the state supreme court intervened, ordering a recount of all ballots rejected by voting machines. On appeal, the U.S. Supreme Court on December 12, 2000, by a five-four vote, reversed the state court and halted the recount, in effect making George W. Bush president. Four of the five pro-Bush justices had been appointed by Republican presidents Ronald Reagan or George Bush Sr. Raising further questions of partisanship, conservative Justice Antonin Scalia in 2004 refused to recuse himself from a case involving Vice President Dick Cheney despite having accepted Cheney's hospitality on a recent duck-hunting expedition.

In 2002–2004, a closely divided court ruled on a number of key issues. On capital punishment, the court in Atkins v. Virginia (2002) forbade the execution of a mentally retarded person. On First Amendment rights, the justices in 2003 upheld the Children's Online Protection Act requiring libraries to block obscene websites on computers accessible to minors. In a decision hailed by the gay and lesbian rights movement, the Supreme Court in 2003 overturned a Texas law barring consensual sexual relations between same‐sex partners. On the separation of church and state, the high court in 2002 upheld a Cleveland “school choice” plan permitting the use of tax dollars to pay the tuition of students attending church-sponsored schools. In 2004, however, the court barred states from giving tuition aid to seminary students studying for the ministry. The same year, the court heard a case challenging the phrase “under God” in the Pledge of Allegiance (inserted by Congress in 1954) as a violation of the First Amendment ban on an establishment of religion.

In a key affirmative-action case, the Supreme Court in 2003 upheld the admissions procedures of the University of Michigan Law School designed to enhance racial and ethnic diversity. At the same time, however, the court rejected Michigan's undergraduate admissions policy involving a point system that gave automatic preference to African-American, Hispanic, and American-Indian applicants.

As it had for more than two hundred years, the Supreme Court of the twenty-first century continued to play a central role on a wide range of public-policy issues confronting American society.
See also Birth Control and Family Planning; Cherokee Cases; Dartmouth College Case; Federal Government, Judicial Branch; Jurisprudence; Liberalism; Municipal Judicial System; Political Parties; Segregation, Racial; Social Darwinism; States' Rights.

Bibliography

Charles Warren , The Supreme Court in United States History, 2 vols., 1926.
William F. Swindler , Court and Constitution in the Twentieth Century, 3 vols., 1969–1974.
G. Edward White , The American Judicial Tradition, 1988.
David P. Currie , The Constitution in the Supreme Court, 2 vols., 1985, 1990.
Kermit Hall, ed., The Oxford Companion to the Supreme Court of the United States, 1992.
Bernard Schwartz , A History of the Supreme Court, 1993.
Melvin I. Urofsky, ed., The Supreme Court Justices: A Biographical Dictionary, 1994.

Melvin I. Urofsky

; Updated by

Paul S. Boyer