History of the Court [This entry treats the historical development of the Supreme Court from its origins to the present. The material has been divided chronologically as follows: Establishment of the Union (1789–1865), Reconstruction, Federalism, and Economic Rights (1866–1920), The Depression and the Rise of Legal Liberalism (1921–1954), and Rights Consciousness in Contemporary Society (1955–2005). Each essay treats the major developments on the Court within the context of social change during specific eras.]
Establishment of the Union When the Constitutional Convention met in Philadelphia in 1787, it was unclear whether the government that would emerge from its deliberations would include a national court system or a supreme court. All the delegates acknowledged that a national government more powerful than that operating under the Articles of Confederation had to be empowered with some kind of lawmaking capability and that national laws would have to be enforced by some court system. But delegates committed to state power and suspicious of national authority considered the existing state courts fully capable of enforcing national laws. Nationalists like James Madison, on the other hand, envisioned a national judiciary that would not only enforce national law but also supervise the state judiciaries.

Creating Judicial Power

The convention delegates reconciled these divergent views in several ways in Article III of the Constitution: They created a Supreme Court, giving it original and appellate jurisdiction but subjecting appellate jurisdiction to whatever “Exceptions” and “Regulations” Congress might choose to make. The convention permitted but did not require the creation of lower federal courts. The framers defined the “judicial Power of the United States” in terms of nine categories of jurisdiction over parties or causes, and they provided the protection of tenure during good behavior and undiminished pay for federal judges (see Judicial Power and Jurisdiction).

The First Congress fleshed out the skeletal authorizations of Article III in the Judiciary Act of 1789, creating a Supreme Court of six judges and a three‐tiered federal judicial structure. Congress established a United States district court in each state, plus circuit courts, consisting of the district judge and two justices of the Supreme Court on circuit, that had both original and appellate jurisdiction (see Circuit Riding). In the act's celebrated section 25, Congress conferred on the Supreme Court appellate jurisdiction over federal questions arising in state‐court litigation, thus creating a potent guarantee of national power that became a focus of contention not resolved until the Civil War.

In the first decade of its existence, the Supreme Court was held in low esteem by most Americans—Congress had originally neglected even to supply it with a chamber; the chief justiceship went begging for nominees more than once. Yet in this unpromising atmosphere, the fledgling Court managed to establish precedents of lasting importance. It began to define the contours of federal judicial power, vis‐à‐vis both the other branches (the problem of separation of powers) and the states (the problem of federalism).

One of the most vital tasks facing the early Court was to define what the judicial function was for the federal courts. In Hayburn's Case (1792), various federal judges declined to act in their official judicial capacity as claims commissioners resolving controversies over veterans' pensions. Chief Justice John Jay, on circuit, instructed Congress that the political branches could not “constitutionally assign to the judicial any duties but such as are properly judicial” (p. 410). In 1793, the Court, speaking through Jay, declined to render advisory opinions on questions President George Washington asked it concerning interpretation of the 1778 Franco‐American Treaty. In a letter to Washington on 8 August, Jay referred to the “lines of separation drawn by the Constitution between the three departments of government” and advised the president that the justices were “judges of a court in the last resort.” Finally, in 1796 the Court implicitly claimed the power of judicial review—that is, the power to declare an act of Congress unconstitutional. In Hylton v. United States, three of the justices sitting en banc upheld a federal carriage tax as not being a “direct Tax” under Article I, section 9—and in so doing implicitly assumed the power of passing on the question of constitutionality.

As the Court established its role vis‐à‐vis Congress and the president, it also attempted to extend its authority over the states. But the mixed results that greeted this effort—as demonstrated in Chisholm v. Georgia—cautioned that questions of federalism would prove much more problematic than questions of the separation of powers. The Constitution granted the Court jurisdiction over controversies “between a State and Citizens of another State,” so when citizens of South Carolina brought suit against Georgia under the Supreme Court's original jurisdiction (because a state was a party) in a contractual claim for goods supplied during the Revolutionary War, the Court's assumption of jurisdiction seemed unexceptionable. But this implicated the extremely sensitive questions of confiscation and debt repudiation by the states during the war and seemed to contradict assurances made by Federalists during the ratification struggle that no state would be sued without its consent. The Eleventh Amendment, withdrawing such jurisdiction, was immediately proposed and ratified, cautioning the Court that the states would jealously protect their interests against the federal judiciary.

If spokesmen for state power expected that the Court would timorously avoid other confrontations in the future, they were soon disappointed. In Ware v. Hylton (1796), the justices returned to the touchy subject of state debt repudiation, voiding a 1777 Virginia statute that sequestered debts owed by citizens of the newly independent state to British creditors on the grounds that it conflicted with the Treaty of Paris (1783). Justice Samuel Chase, writing for the Court, not only voided the statute for incompatibility with treaty obligations but also hinted that, the treaty aside, the statute was void under higher‐law principles. Despite noisy criticism, the Ware result was not overturned by amendment, but the states remained sullenly hostile to the Court when its power impinged on what they saw as their sovereignty (see State Sovereignty and States' Rights).

The early Court began exploring the theoretical bases of judicial review. Justice William Paterson, in a grandiloquent jury charge on circuit in Van Horne's Lessee v. Dorrance (1795), asserted that state legislatures were subordinated to “the principles of the social contract, or of the constitution” (p. 312). He and his colleagues returned to the question in Calder v. Bull (1798), an appeal from a Connecticut statute that set aside a probate decree and granted a rehearing. The Court declined to void the statute on ex post facto grounds, but Chase asserted in sweeping dicta that “vital principles in our free republican governments” would void state legislation even if no specific principle of the state constitution forbade it (p. 388) (see Obiter Dictum). Justice James Iredell demurred from this reliance on natural law, arguing that “the ideas of natural justice are regulated by no fixed standard” and provided judges with no legitimate and universally accepted criteria for holding state statutes unconstitutional (p. 399).

From a nationalist's point of view, the 1789 Judiciary Act was defective in several respects. It conferred only a fraction of the federal‐question jurisdiction authorized by the Constitution, and it imposed onerous circuit riding responsibilities on the justices, some of whom were becoming aged and infirm and all of whom had better things to do than ride circuits a thousand miles away from the national capital. Determined to ensconce their political ideology in the federal courts after they were repudiated at the polls in 1800, Federalists enacted the Judiciary Act of 1801, which conferred full federal‐question jurisdiction and enlarged both diversity and removal jurisdiction. It expanded the federal judiciary by creating six new circuit courts staffed by their own judges, thus eliminating the burden of riding circuit. Jeffersonian Republicans, outraged at this eleventh‐hour power grab, repealed the 1801 act within a year, and Chief Justice John Marshall prudently upheld the constitutionality of the repeal in Stuart v. Laird (1803).

The Marshall Court

Though the accomplishments of the Court in its first decade were significant, they had really not secured the place of the judiciary in American government. That was left to Chief Justice John Marshall, who was appointed in 1801 and served until his death in 1835. The generation of Marshall's tenure seems divided, in retrospect, into two periods. The first, lasting until 1824, was a time of expansive constitutional interpretation, when Marshall and his colleagues boldly elevated the stature and power of the Supreme Court and the federal judiciary generally. The second period, the decade after 1824, was by contrast a period of contraction and compromise.

Expansion of the Court's Power, 1801–1824

In order to assure the Court's position as a coequal partner with Congress and the president in the tripartite structure of the federal government, it was necessary for Marshall to establish the power of judicial review: the authority to determine that an act of Congress or the executive branch was a violation of the Constitution. Alexander Hamilton had claimed this power for the federal courts in The Federalist no. 78, but the power was not conceded by the American legislatures as the new century dawned.

Drawing extensively on Federalist 78, Marshall conjured up the doctrine of judicial review in Marbury v. Madison (1803). Adroitly criticizing the new administration of President Thomas Jefferson yet leaving the Court invulnerable to political attack, Marshall reprimanded Secretary of State James Madison for refusing to deliver a justice of the peace commission to William Marbury. He went on to hold that the Supreme Court lacked power to provide the relief that Marbury sought, a writ of mandamus, because the Judiciary Act of 1789, which authorized it, unconstitutionally granted to the Court a power not authorized by the Constitution.

Marshall justified this result by holding that when the Court is asked to determine whether a statute is unconstitutional, it merely determines which of two laws, statute and Constitution, is of controlling authority. Implicit in this reasoning was the crucial assumption that the Constitution is a law, to be administered by courts like any other law. But that idea produced Marbury's central ambiguity: When exercising the power of judicial review, does the Court perform a unique function of monitoring the conformity of the other branches to the constitutional mandate, or is it merely doing what courts normally do—that is, applying a law to resolve a dispute? That ambiguity persists to the present day. Marshall also suggested a distinction that assumed great significance in the twentieth century between the “ministerial” responsibilities of the other branches, which courts could force them to perform, and “political” or discretionary powers, which courts cannot compel (see Political Questions).

The political implications of Marshall's assertion of power were not lost on Jefferson. They confirmed for him the suspicion he had borne since his election that a Federalist‐dominated judiciary would deprive him of the fruits of the Republican victory in what he called “the Revolution of 1800.” Repeal of the Judiciary Act of 1801 was one response; another was the powerful threat of impeaching obnoxious federal judges. Jeffersonian Republicans began their political assault on the federal judiciary with the successful but meaningless impeachment of District Judge John Pickering, who at his trial in the Senate was found to be insane. Jefferson's party then impeached Samuel Chase of the Supreme Court, who on circuit had presided over prosecutions under the Sedition Act of 1798 with unbecoming zeal and severity. Later, in some grand jury charges, Chase had delivered intemperate and antidemocratic political harangues about the “mobocracy” that would be grossly improper by modern standards. But Jeffersonians could not muster the necessary two‐thirds vote in the Senate to convict Chase, thus leaving the judiciary immune from impeachment used exclusively as a political weapon by a dominant party determined to purge the federal bench of its opponents.

The president was further frustrated by the failure of the treason prosecution of his erstwhile vice president, Aaron Burr, in 1807. The motives behind Burr's mysterious 1806 military expedition on the Ohio River remain obscure. But Jefferson zealously pursued his political enemy by an indictment for treason, only to be frustrated by Marshall, sitting as chief judge on circuit in Virginia. In United States v. Burr (1807), Marshall construed the treason clause of Article III in a way that erected a high threshold for all treason prosecutions, preventing resort to such prosecutions used as a political device and burying Jefferson's attempt to import the doctrine of “constructive treason” into American law.

The Marshall Court exerted a major influence on economic development in the United States. In Fletcher v. Peck (1810), it gave a broad reading to the Contracts Clause of Article I, which for most of the century provided the doctrinal basis for the courts' supervision of legislative regulation. Fletcher involved a state conveyance of lands that the Georgia legislature subsequently rescinded on the grounds that the grant was contaminated by bribery. Marshall construed the original grant to be a contract, thus extending the reach of the clause to contracts in which the state itself was a party and to contracts already executed. It is questionable whether the framers anticipated either reading of the clause. Nevertheless, Fletcher was the first in a line of cases that made the Contracts Clause an inhibition on state legislative power.

Marshall expanded the clause in Dartmouth College v. Woodward (1819) to protect corporate charters from rescission or modification by the state. In Terrett v. Taylor (1815), Justice Joseph Story had devised a major new concept in American law, that of the private corporation. Before the nineteenth century, the corporation served chiefly as a vehicle for public enterprises such as municipalities, charitable institutions, transportation facilities (roads, bridges, ferries), and trading companies. Purely private, profit‐oriented enterprise was carried on under other forms, such as partnerships. But on the eve of the Industrial Revolution, a new legal entity was needed to permit entrepreneurs to amass capital without the double risk imposed by the partnership form—unlimited individual liability for enterprise debts and the termination of the enterprise by the death or withdrawal of a partner. The corporation avoided those risks, but investors sought assurances that the legislature would not subsequently modify corporate charters to their disadvantage. Story attempted to provide that guarantee in Terrett, but he did so only on the vague higher‐law principles of Calder v. Bull.

In the Dartmouth College case, Marshall shifted the protection for corporations to a more certain textual base, the Contracts Clause, holding that the clause prohibited states from subsequently modifying the terms of the “contract” between them and investors, namely, the corporate charter. Dartmouth College has been hailed, somewhat extravagantly, as the midwife of corporate capitalism in the United States. The case was also significant in that Marshall dropped Calder's higher‐law concepts completely from the Court's jurisprudence, henceforth relying solely on some specific clause of the Constitution. This approach gave the Court's expanding role in supervising legislatures a more secure and legitimate foundation.

A different kind of corporation—a bank—provided the subject of one of the Marshall's Court's most influential decisions, McCulloch v. Maryland (1819). Marshall again relied on arguments originally made by Alexander Hamilton and elevated them to the status of constitutional doctrine. When Congress originally chartered the Bank of the United States in 1791, President George Washington sought his Cabinet's advice as to whether Congress had constitutional authority to do so. Thomas Jefferson, Washington's secretary of state, argued that it did not, articulating for the first time the strict constructionist arguments that have assumed such a prominent place in present‐day constitutional debate. Hamilton, the secretary of the treasury, confidently claimed the authority for Congress, holding it to be implied from other express powers granted Congress in Article I, such as the power to raise armies, which necessarily implied a power to pay them and to handle the funds in any way not explicitly prohibited by the Constitution.

After Congress chartered the second Bank of the United States in 1816, southern and western states reacted to it with vociferous hostility because they believed that the bank inhibited the growth of capital in their regions and that it engaged in fraudulent and speculative fiscal practices. Accordingly, they either forbade its operations in their jurisdictions or taxed it prohibitively. The bank appealed a Maryland tax to the Supreme Court, raising again the question that Jefferson and Hamilton had debated in 1791. In McCulloch, Marshall adopted Hamilton's arguments, upholding Congress's power to charter a bank despite the absence of express warrant in the Constitution. The power could be implied, Marshall held, and Congress had wide latitude under the “necessary and proper” clause of Article I to effect its enumerated powers. He did concede, though, that Congress could not enact legislation on the mere “pretext” of exercising its enumerated powers (see Implied Powers).

Marshall then went on to hold that the states could not constitutionally levy a tax on an instrumentality of the federal government, observing that “the power to tax involves the power to destroy” (p. 431). This holding, subordinating state regulatory power to the supervision of the federal courts, provoked a vigorous denunciation from Virginia political and judicial leaders. The reaction demonstrated to thoughtful observers such as Madison how widely the North and South were diverging from each other in their constitutional theory.

The Constitution of 1787 was a sheaf of compromises, the most fundamental involving the nature of the Union it created. One view, later expressed by Jefferson and Madison in the Virginia and Kentucky Resolutions of 1798 and 1799, held that the states remained substantially sovereign, creating a national government of limited and delegated powers while reserving to themselves all residual powers of sovereignty. The textual basis of this position was the Tenth Amendment. The contrasting position maintained that, as Marshall put it in McCulloch, “the government of the Union, though limited in its powers, is supreme within its sphere of action” (p. 405). The textual source for this view was the Supremacy Clause of Article VI.

These differing emphases clashed before the Court in at least two other major decisions besides McCulloch: Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821). Arguments before the Court were supplemented by anonymous newspaper polemics written by Marshall and Chief Judge Spencer Roane of the Virginia Supreme Court of Appeals, tracing in prolix argument the implications of the Constitution's basic ambiguity concerning federalism. In Martin, Justice Story held that section 25 of the Judiciary Act of 1789 was constitutional and that therefore decisions of state supreme courts could be appealed to the United States Supreme Court. Because the case involved lands in Virginia's Northern Neck and was appealed from Roane's court, Virginians condemned the Supreme Court, Story's reasoning, and section 25. Three years later, McCulloch, with its assertion of federal supremacy, inflamed their resentments further. So when Marshall, in Cohens, reaffirmed Story's highly nationalist position, the Virginians, defending the state‐sovereignty position of 1798–1799, demanded repeal of section 25 or a constitutional amendment that would subordinate the Court's authority to state power.

A related conflict over national power came before the Court in the last great case of the Marshall Court's expansive phase, Gibbons v. Ogden (1824). Marshall there relied on a strained and expansive reading of a federal coastal licensing statute to strike down a New York statute that granted monopoly of an interstate ferry route. The constitutional basis of his position was the Commerce Clause of Article I, here given its earliest—and an extremely broad—interpretation. Gibbons is the origin of the pervasive federal regulatory power under the Commerce Clause that dominated the Court's assumptions about federalism after 1937 (see Commerce Power).

In addition to its implications for federalism, Gibbons and its state‐court antecedents (e.g., Livingston v. Van Ingen, 1812) also reflected a controversy about the future of American economic development. On one side were protagonists of monopoly, like New York's Chief Justice James Kent (later joined by Story), who believed that the law had to encourage investors with exclusive and monopolistic grants to entice their risk capital into promoting development. Other jurists, like New York's Chancellor John Lansing, took the opposing view, believing that competition and not monopoly was the surest guarantor of economic advance. Although it struck down a monopoly, Marshall's Gibbons opinion did not really endorse the latter view.

The Marshall Court's Retreat, 1824–1835

Even during the expansive phase of his tenure, Marshall had respected the constraints that political realities imposed on the scope of the Court's action. For example, he went along with Justice William Johnson's opinion in United States v. Hudson and Goodwin (1812) denying federal courts common‐law criminal jurisdiction, a prudent approach given the sensitivity of this issue. In line with this view, the Court held in *Wheaton v. Peters (1834) that there was no general federal common law. But a number of events that occurred after the War of 1812 forced on Marshall a more inhibited approach to questions involving federal judicial power. The depression of 1819 coincided with the Missouri Controversy, which brought in its train a series of crises to the internal security of the slave states. The southern states' affirmation of the postulates announced in the Virginia and Kentucky Resolutions and their hostility to federal jurisdiction forced on Marshall the concessions to state authority that characterized his later years.

Insolvency legislation provides a good example of the Court's retreat in the 1820s. Article I of the Constitution empowers Congress to enact bankruptcy legislation, and it prohibits states from impairing the obligation of contracts. These clauses came together in Sturges v. Crowninshield (1819), when Marshall held that the Bankruptcy Clause did not imply an exclusive federal power. It did not prevent the states from enacting bankruptcy laws, but the Contracts Clause did prohibit insolvency laws that applied to contracts made before their passage. This left a question open: Could state insolvency laws apply to debts contracted after their enactment? In Ogden v. Saunders (1827), the Court held that such application of insolvency laws to future contracts did not impair the obligation of contracts, a necessary concession to state power. Marshall, for almost the only time in his tenure of thirty‐four years, dissented.

And so it went throughout his last decade. Dogged by the movement to repeal section 25, Marshall prudently threw concession after concession to his political enemies. In Willson v. Blackbird Creek Marsh Co. (1829), a mere five years after Gibbons, Marshall held that state legislation that authorized the damming of a navigable waterway was not invalid, even though it impinged on a route of interstate commerce. And when Marshall's prudence lapsed, political retaliation reminded him of the limits of the Court's power. The Cherokee Cases (Cherokee Nation v. Georgia, 1831, and Worcester v. Georgia, 1832) demonstrated that when the states enjoyed the sympathetic support of the political branches of the federal government, the Supreme Court was impotent in its isolation. Marshall had attempted to extend some measure of protection to Native Americans from the hostility and rapacious land‐hunger of Georgia whites, to no avail. President Andrew Jackson may never have uttered the perhaps apocryphal remark attributed to him—“The Chief Justice has made his decision; now let him enforce it”—but the president's sentiment expressed the wisdom of Hamilton's observation in Federalist 78 that the Court would always require the support of the political branches because it controlled neither army nor treasury. The most significant Marshall concession to state power came in Barron v. Baltimore (1833), in which Marshall held that the Bill of Rights was a limitation only on the federal government, not on the states.

The Taney Court

Historians have long discredited the contemporary idea that Roger B. Taney's accession to the chief justiceship signaled a revolutionary change in the values and direction of the Supreme Court. Modern scholars have emphasized the continuities between the Marshall and Taney Courts: both were dedicated to the ideals of limited government as a security for individual liberty; both respected the need for effective authority in the federal and state governments to ward off the evils of enfeebled governance; both valued the opportunities that capitalism provided and were determined to use the law to remove impediments to realizing those opportunities; neither sought to disturb the social order in any significant way; and both expanded and used federal judicial power. But the Court of 1837 was undoubtedly different from its predecessor of 1801. For one thing, it now consisted of nine justices. Five of them were Democrats appointed by President Andrew Jackson: Taney, John McLean, Henry Baldwin, James M. Wayne, and Philip P. Barbour. Four members of the Court, including Taney, were from slaveholding states, while only one, McLean, could reasonably be suspected of harboring antislavery leanings. Conservatives, including Story, James Kent, and the anti‐Jacksonian Whig press, saw portents of revolution in the new Court and its chief justice, mainly because of three major opinions in Taney's maiden term.

The most far‐reaching of these was Charles River Bridge v. Warren Bridge (1837), which bundled together a remarkable array of constitutional questions, including the power of a state legislature to control economic development, the place of monopolies in American economic life, the impact of technological change on the law, and the role of the Supreme Court in supervising state public policy. The Massachusetts legislature chartered a bridge company, giving it the power to collect tolls but saying nothing about an exclusive right to carry traffic over the Charles River. A generation later, responding to the need for increased traffic‐carrying capacity between Boston and its northern hinterland, the legislature chartered another bridge, which was eventually to become a free bridge, thus destroying the value of the original bridge's charter. The old bridge insisted that its charter contained an implied monopoly and that creation of a new free bridge destroyed the vested rights it enjoyed in that monopoly.

Taney, for the Court, rejected that argument, relying on a course of reasoning that Marshall had laid out seven years earlier in Providence Bank v. Billings (1830). Remaining securely within the constitutional boundaries of the Dartmouth College case, Marshall and Taney held that extraordinary privileges, such as an exemption from taxation or monopoly of a bridge site, may not be read into a corporate charter by implication (see State Taxation). The state legislature may grant such privileges if it wishes, but it must do so explicitly. Any other rule, Taney warned, would permit older and obsolete technologies to impede material progress. Story dissented, insisting that the effect of Taney's instrumentalist opinion was to discourage investors by frustrating their expectations. The Court's position implicitly endorsed the competitive, rather than the monopoly, model of economic development that had been at issue in the Gibbons case.

Judicial Statesmanship

Taney's most enduring legacy is found in cases that involved the scope of federal judicial power. This would have surprised his contemporary conservative critics, who knew him only as the ghost‐author of Jackson's Bank veto message of 1832. Taney, then the attorney general, had there maintained that the Supreme Court's opinion on a constitutional question, such as the power of Congress to charter a bank, was not binding on the other branches of government, which enjoyed a coordinate authority to resolve constitutional questions for themselves. (This view would be later echoed by other presidents, most notably Abraham Lincoln, who found certain Supreme Court holdings irksome.)

Throughout his twenty‐seven‐year tenure on the Court, Taney strove to establish a balance between state regulatory power and the authority of the federal courts, seeking to enhance both. One of his early opinions, Bank of Augusta v. Earle (1839), demonstrated this tendency of his judicial statesmanship. The issue presented was whether a corporation could do business within any state other than the one that chartered it. Taney held that a corporation might do business in any state consenting to its presence. That consent would be implied unless the state took some positive steps to exclude foreign corporations. Taney thus avoided the evils of making corporations the protégés of federal courts, which would have heightened state animosities toward both courts and companies, and of imposing an unnecessary inhibition on interstate enterprise by the federal system.

In Louisville Railroad Co. v. Letson (1844), the Taney Court discarded an undesirable jurisdictional doctrine originating in Bank of the United States v. Deveaux (1809), which had held that for diversity purposes, all the shareholders of a corporation that was a party to a suit in a federal court must be diverse from the other party. Especially where a corporation was the other party, this effectively shut the doors of federal courts to corporate litigants, an unnatural constraint on federal jurisdiction that became less desirable as interstate business expanded. In Letson, the Court scuttled Deveaux by holding that, for diversity purposes, a corporation is deemed a citizen only of the state in which it was incorporated. This expanded the jurisdiction of federal courts and opened their doors to corporations seeking to flee the more hostile environment of state courts presided over by elected judges.

Taney expanded the political‐question doctrine in Luther v. Borden (1849), one of his longest‐lived opinions. Arising out of the Dorr Rebellion of 1842 in Rhode Island, Luther raised the question whether federal courts had any role in enforcing the clause of Article IV that empowered the federal government to “guarantee to every State in this Union a Republican Form of Government” (see Guarantee Clause). Taney held that they did not, such issues presenting political questions allocated by the Constitution to Congress or the president for resolution. The political‐question doctrine remains today one of the most influential monitors of federal jurisdiction, reflecting the creative spirit of Taney's jurisprudence.

The Supreme Court under Taney did not hesitate to strike down an exercise of state power that it deemed pernicious, as it did in Gelpcke v. Dubuque (1864), the last major case of Taney's tenure. The case arose when out‐of‐state bondholders faced state repudiation of public indebtedness. The Court refused to be bound by a state supreme court construction of state constitutional provisions when it believed that the state court's reading deprived investors of rights protected by the federal Constitution.

One of the most salient characteristics of the Taney Court, and one of the few that set it off from its predecessor, was its keen sensitivity to the impact of technological change on the law. Charles River Bridge displayed that sensitivity; so did *West River Bridge v. Dix (1848), in which the Court ratified the doctrine of eminent domain and permitted a state to revoke a bridge franchise on payment of just compensation. In Genesee Chief v. Fitzhugh (1852), the Court repudiated another Marshall Court precedent that had confined the admiralty jurisdiction of federal courts to tidal waters. Although this early ruling conformed to English admiralty doctrine, it was out of place in the geographic setting of the United States, with its vast river systems and the Great Lakes, “inland seas” as Taney called them. In place of the tidewater doctrine, Taney adopted the navigability test for federal admiralty jurisdiction, thus extending federal judicial authority throughout the inland waterways. Both decisions reflected the impact of a new technology, the external‐combustion engine, on law. Eminent domain facilitated the expansion of railroads, while Genesee Chief mirrored the influence of steam navigation.

Commerce Clause Decisions

A concomitant of technological change was the expansion of interstate commerce, and that in turn posed the question of how far federal courts should encourage and monitor the national market. The enigmatic case of Swift v. Tyson (1842) presented the Court with an opportunity to expand its supervision of the economy and thus to extend federal power considerably. Section 34 of the Judiciary Act of 1789 made state law the rule of decision in federal courts in diversity cases. The question presented in Swift was whether state law included decisional law, that is, the common law evolved by the state courts. Story, writing for a unanimous Court, held that in commercial law cases it did not, the federal courts being free to select rules of substantive law from “the general principles and doctrines of commercial jurisprudence” (p. 2). Story hoped thereby to encourage the development of a uniform body of national commercial law, with federal courts assuming a leading role in discovering and declaring its substantive content. Over the next century, Swift proved to be the basis for an ever‐widening expansion of federal jurisdiction, until it was repudiated as unconstitutional by Justice Louis D. Brandeis in *Erie Railroad v. Tompkins (1938).

Cases involving the Commerce Clause provide a striking contrast with the creativity and statesmanship displayed by the Taney Court in other areas. Antebellum Commerce Clause cases, with one exception, present a record of frustration and confusion. The Court got off to a compromised start in one of the other major opinions of Taney's first term, Mayor of New York v. Miln (1837), which upheld the validity of a state law requiring the captain of a vessel carrying immigrants to provide a manifest containing information about them, the state's purpose being to exclude diseased and insane foreigners. Justice Barbour upheld the state's authority on the basis of its “exclusive” police power, the general authority of a sovereign to regulate for the health, safety, welfare, and morals of its people. But this holding evaded rather than resolved the question of the exercise of the police power when it conflicted with an actual or dormant regulation of interstate commerce by Congress. The Court proved unable to provide usable Commerce Clause doctrine in the License Cases (1837) and the Passenger Cases (1849), which presented similar questions. The justices produced nine opinions in the former, eight in the latter, a sure sign of profound doctrinal confusion and unhealthy instability.

The Slavery Question

The cause of this instability, usually hidden behind the facade of opinions, was slavery. The southern justices, led by Taney, feared that an acknowledgment of a broad federal commerce power might threaten certain aspects of slavery, notably the interstate trade in slaves. There is no evidence that in doing so the southern justices were motivated by the conclusion of modern historians that the interstate slave trade was essential to the vitality and even the long‐term existence of slavery in both the old and new slave states. The southerners' attention was fixated on another problem, the worldwide movement to abolish slavery and the threat that movement posed for the internal security of slavery at home. Thus, they bristled at suggestions that Congress could exercise any authority, even indirect or benign, over any aspect of slavery. Most Commerce Clause cases presented just such a possibility.

The Court did achieve one breakthrough in this area, however, in *Cooley v. Board of Wardens (1852), by redefining the problem and temporarily distancing itself from the specter of abolition. Cooley involved pilotage fees levied in the port of Philadelphia, which were attacked as an interference with interstate and foreign commerce. Justice Benjamin R. Curtis upheld the fees on the basis of a distinction between subjects of regulation that were inherently local (and thus appropriate for state regulation of commerce) and those that were national in scope, which were reserved to Congress. Vague though this formula was, Cooley provided the basis for subsequent allocations of authority between states and Congress in questions of commerce regulation (see Selective Exclusiveness).

Slavery proved to be the cancer of the Constitution. The framers had incorporated protections for slavery, direct and indirect, in ten provisions of the Constitution, but they assumed that the federal government would have no responsibilities concerning it, except for the one specified matter of the international slave trade. The Marshall Court, sensing the danger and probable futility of becoming involved in slavery matters, managed to avoid rendering any significant decisions on the subject. Taney and several of his colleagues not only lacked the prudence of their predecessors but also were determined to mold public law to protect slavery and suppress all threats to its security and expansion. The result was the greatest disaster the Supreme Court has ever inflicted on the nation.

The conflict over slavery intensified after 1830. Demonstrating the validity of Alexis De Tocqueville's dictum that sooner or later all political controversies in America end up in the courts, both sides in the controversy began litigating—in both state and federal courts—legal questions involving “the peculiar institution.” The first major issues to come before the Supreme Court were fugitive slaves and personal liberty laws, in Prigg v. Pennsylvania (1842). The lineup of opinions in Prigg was confusing; even today scholars debate what the case really determined, and a dictum by Story, who wrote for the Court on several points, is often wrongly taken to be the holding of the Court. Nevertheless, the result in Prigg was the invalidation of existing state laws that interfered with procedures under the 1793 federal Fugitive Slave Act for the capture and rendition of fugitive slaves. Taking advantage of a loophole suggested by Story in a dictum, however, several Northern states quickly enacted new personal liberty laws that avoided the vices defined in Prigg; these generally prohibited the use of state officials and facilities in fugitive recaptures.

The problem of fugitive slaves returned to the Court in different guise in Jones v. Van Zandt (1847), in which Justice Levi Woodbury, a New Hampshire Democrat, sustained the constitutionality of the Fugitive Slave Act and its provision for civil penalties against persons who assisted in the liberation of a fugitive. Woodbury extolled the slavery clauses of the Constitution as “sacred compromises.” He also dismissed antislavery suggestions that a judge must refuse to enforce an immoral law on the positivist grounds that a judge swears to uphold the law as given, not to disregard law because it offends his moral views.

The slavery controversy entered an intensified and terminal phase with enactment of the Compromise of 1850 and the Kansas‐Nebraska Act of 1854. The violent political reactions to those two efforts to impose a legislative solution on the slavery crisis led some to seek a judicial resolution instead. Taney was eager to oblige. Dred Scott v. Sandford (1857) came to the Supreme Court from a decision of a federal circuit court in Missouri in a protracted freedom suit holding a Missouri African‐American, Dred Scott, his wife, and their two daughters to be slaves under Missouri law, despite having been taken by their owner to a free state and a territory designated free under the Northwest Ordinance of 1787. By the time it reached the Supreme Court, Dred Scott had become politicized, for it raised the question of Congress's power to control the spread of slavery into the territories. Not only counsel on both sides, but most of the justices of the Supreme Court as well, sought a final judicial determination of the question, in the fatuous expectation that a pronouncement by the Court could quell the entire slavery controversy. All nine justices wrote opinions in the case, but Taney's must be taken as that of the Court; McClean and Curtis dissented.

Taney began with a procedural question that had far‐reaching substantive implications: Could a person of African descent, whether slave or free, be a “citizen” for purposes of the grant of diversity jurisdiction in Article III? If that question were answered in the negative, then Scott's suit was not within the jurisdiction of federal courts and ought to have been dismissed (see Citizenship). But with the recklessness that characterized his handling of all slavery questions, Taney refused to end discussion at that point; he gratuitously went on to extrapolate from his discussion of the meaning of “citizen” the historically unfounded conclusions that blacks could never become members of the national body politic (although he conceded with distaste that a misguided state might make them into citizens.) It was here that he uttered the statement that drove his reputation into obloquy: Blacks were “regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect” (p. 407).

Taney then went on to consider the power of Congress over slavery in the territories. If Congress could not prohibit slavery in the territories, then a slave could not be made free by being taken into a territory, as Scott had been, even if Congress had purported to abolish slavery there. Taney held that Congress lacked such power, thereby depriving the Republican party of the central plank in its platform. At three points in his poorly reasoned opinion, Taney endorsed the extremist constitutional position that had been evolved by John C. Calhoun and his acolytes since 1837: Congress not only could not abolish slavery in the territories; it had to protect and promote it there. He also suggested in passing that the Fifth Amendment's Due Process Clause protected the rights of slave owners in the territories. Many have seen this as the sudden appearance of substantive due process, but this is reading more into Taney's brief and offhand allusion than he intended. Taney also gratuitously rejected the constitutional validity of the Northern wing of the Democratic Party, encapsulated in the slogan “Popular Sovereignty,” by holding that Congress could not authorize a territorial government to abolish slavery (see Territories and New States).

The Dred Scott decision touched off a political firestorm, but Taney remained obstinately indifferent to the damage he had done to the Court's reputation and to the process of constitutional adjudication. Two years later, in *Ableman v. Booth (1859), he upheld the constitutionality of the Fugitive Slave Act of 1850 in dictum. He condemned the efforts of the Wisconsin Supreme Court to free an abolitionist held under that statute as well as its disregard of an order of the U.S. Supreme Court. A case coming to the Supreme Court from the New York Court of Appeals, Lemmon v. The People (1860), might have provided it with an opportunity of forcing slavery into the free states as it had forced it into the territories (a possibility predicted by Lincoln in 1858), but the coming of the war aborted that possibility.

The Court played only a peripheral role during the Civil War, not because it was abashed by the reaction to Dred Scott but because the Court's significance in resolving great questions of public policy normally recedes when the United States is immersed in total war, as also happened in World War I and World War II. It did, however, by a 5‐to‐4 margin, uphold the legitimacy of Lincoln's response to secession in the Prize Cases (1863). Apart from that, the Court's wartime role was marked by a salutary sense of the limits of its influence, as the great constitutional questions of the day were being resolved at the cannon's mouth. Few foresaw that war's end would bring with it as great an expansion of judicial power as Marshall had accomplished in his first two decades.

Bibliography

William R. Castro , The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth (1995).
David P. Currie , The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985).
Don E. Fehrenbacher , The Dred Scott Case: Its Significance in American Law and Politics (1978).
Julius Goebel, Jr. , History of the Supreme Court of the United States, vol. 1, Antecedents and Beginnings to 1801 (1971).
Charles G. Haines , The Role of the Supreme Court in American Government and Politics, 1789–1835 (1944).
George L. Haskins and and Herbert A. Johnson , History of the Supreme Court of the United States, vol. 2, Foundations of Power: John Marshall, 1801–15 (1981).
Harold M. Hyman and and William M. Wiecek , Equal Justice under Law: Constitutional Development 1835–1874 (1982).
Peter Karsten , Heart versus Head: Judge‐made Law in Nineteenth‐century America (1997).
R. Kent Newmyer , Supreme Court Justice Joseph Story: Statesman of the Old Republic (1985).
R. Kent Newmyer , John Marshall and the Heroic Age of the Supreme Court (2001).
Carl B. Swisher , History of the Supreme Court of the United States, vol. 5, The Taney Period, 1836–1864 (1974).
Charles Warren , The Supreme Court in United States History, rev. ed. (1931).
G. Edward White , History of the Supreme Court of the United States, vols. 3–4, The Marshall Court and Cultural Change, 1815–35 (1988).

William M. Wiecek

Reconstruction

After the Civil War, Americans faced the difficult problem of how to reconstruct both the Union and the individual southern states. Despite significant opposition on the part of northern Democrats aided by President Andrew Johnson, who succeeded Abraham Lincoln, the Republican party was able to maintain control of the national government. Republicans were deeply committed to protecting the basic rights of the newly freed slaves and of white southern unionists. Closely related was a determination that unreconstructed Confederates not be permitted to resume control of the southern states. But these commitments had to be reconciled with the general desire for a speedy restoration of the Union, for generosity to rebels who demonstrated renewed loyalty, and for the maintenance of a balanced federal system.

Republicans determined to establish a program to secure these goals before they restored southern states to normal relations in the Union. Ultimately, Congress passed a Reconstruction Act (1867) that declared the Johnson‐authorized governments provisional and placed them under military authority until Congress recognized new governments to be established by constitutional conventions and subsequent elections.

These decisions raised the profound constitutional question of the status of the southern states and people upon the close of the war. White Southerners, northern Democrats, and President Johnson were convinced that Republicans were abrogating the rights of the southern states and unconstitutionally subjecting the southern people to military government. As northern Democrats and Johnson lost the political struggle to the Republicans, white southerners appealed to the Supreme Court.

They had some hope of success, because in Ex parte Milligan (1866) five of the justices opined that Congress could suspend the privilege of habeas corpus and authorize military trials—a key element of military supervision of the South—only when ordinary courts were closed by invasion or insurrection. Moreover, in Cummings v. Missouri (1867) and Ex parte Garland (1867) the justices by 5‐to‐4 margins had signaled their distaste for the Republican program by ruling that test oaths could not be used to bar former rebels from practicing their professions. The “test oath” laws made the ability to take an oath of past loyalty a test for admission to the bar, clergy, or other influential professions.

These decisions led to charges that the Court was continuing its old proslavery ways. Leading Republicans in Congress proposed to strip the Court of the power to review national laws or to require two‐thirds majorities to rule federal laws unconstitutional. But in Mississippi v. Johnson (1867) and Georgia v. Stanton (1868), the Court refused requests from the Johnson‐organized state governments for injunctions restraining the president and his secretary of war from enforcing the Reconstruction Acts (see Judicial Review).

The Court exercised judicial restraint again in Ex parte McCardle (1869), in which southerners challenged the Reconstruction Act's provision for military trials and the constitutionality of the Reconstruction Act in general. Although several justices wanted to speed the decision, the majority refused, allowing Congress to repeal the legal provision under which the case had been brought. The Court then agreed that the repeal had destroyed its jurisdiction, even though the case had been pending.

The Court's discretion helped to restore its moral authority as a neutral expositor of law. But despite their concerns, most Republicans never intended to attack the Court as an institution. On the contrary, they recognized that it would be a crucial instrument for carrying out their program to provide federal protection for civil and political rights.

The Republican Program

There were two aspects to the Republican Reconstruction program. First, Republicans tried to reshape the southern states in such a way that the state governments would themselves provide equal protection for the rights of citizens. Rejecting radical proposals to redistribute property, take over education, and reduce the states to territories directly subject to congressional control, Republicans relied primarily on giving black men the right to vote through the Reconstruction Act and the Fifteenth Amendment to the Constitution, ratified in 1870. If politically empowered, black Southerners would be able to demand protection in their rights in exchange for their votes, Republicans believed.

The second element of the Republican Reconstruction program was to pass national laws and constitutional amendments barring states from depriving citizens of basic rights and mandating their equal protection. The Civil Rights Act of 1866 defined as citizens everyone born in the United States except untaxed Native Americans, who were still subject to tribal government (see Citizenship). It then declared that every citizen was entitled to the same basic rights (which it listed) as white citizens, notwithstanding any law, ordinance, rule, or custom to the contrary. The Civil Rights Act of 1875 barred discrimination in inns, transportation, and amusement places. The Thirteenth Amendment, ratified in 1866, abolished slavery. The Fourteenth, ratified in 1868 declared all persons born in the United States and subject to its jurisdiction to be citizens of the Court. It forbade states from abridging the privileges or immunities of United States citizens; from depriving any person of life, liberty, or property without due process of law; and from denying any person equal protection of the laws. The Fifteenth Amendment, as already noted, barred both the states and the United States from making racial discriminations in voting rights. Each amendment authorized Congress to pass appropriate legislation to enforce it, and the Republicans did so immediately upon their ratification.

Potential in these laws and amendments was a radical change in the federal system. The primary responsibility for protecting the ordinary rights of citizens had always lain with the states; the national government had never been able to enforce the few provisions in the pre–Civil War Constitution that guaranteed civil liberties against state invasion. If the states themselves did protect rights equally obeying the mandates of the new laws and constitutional amendments, then the practical change in the federal system would be minimal. But if they refused, then Congress would have to enforce them. In that case Reconstruction would mark a revolutionary change in the federal system, with the national government passing laws forcing the states to fulfill their constitutional responsibilities and perhaps directly assuming the job itself. Therefore, the more successfully the Republicans completed the first part of their program, the less radical would be the practical effect on federalism of the second.

The form of the Fourteenth and Fifteenth Amendments indicated the leading role Republicans expected the courts to take in their enforcement. Republicans framed them on the pattern of limitations that Article I, section 10 of the Constitution had placed on state authority to impair the obligation of contracts, regulate interstate or foreign commerce, and other matters—limitations that the federal courts had vigorously enforced before the war and that Article VI of the Constitution obligated the state courts to enforce as well.

Moreover, in a series of laws culminating in the Removal Act of 1875, Republicans authorized parties to remove cases to federal courts when they could not secure federally guaranteed rights in the state courts. In fact, the 1875 act authorized the removal to the federal courts of any case arising under the federal Constitution, laws, or treaties, and for the first time gave the lower federal courts original jurisdiction in all such cases.

Republicans hoped that further national legislation would be unnecessary because more direct national enforcement would threaten the balance of the federal system, something most Republican policymakers themselves did not desire and something that might cost them political support. But when black voters placed Republicans in control of the governments of most of the southern states, the great majority of southern whites refused to accept their legitimacy. They resisted with terror and violence. When southern Republican governments proved unable to protect their citizens, the Republican Congress and President Ulysses S. Grant were reluctantly forced to protect them by direct legislation.

Congress passed laws making it illegal to conspire to violate rights secured by the Constitution and laws of the United States. At first the Republicans aimed the laws at people acting under the color of state authority, but finally they had to direct the laws at terrorism carried out by private citizens. The Force Act of 1871—often called the Ku Klux Klan Act—authorized President Grant to suspend the privilege of habeas corpus and use troops to suppress violence. Grant regularly sent federal troops to keep the peace during election campaigns, at the request of state authorities or United States marshals and district attorneys.

Republican legislation after 1870 made the revolution in federalism that had been potential in the Civil War Amendments real. A vocal and influential minority of Republican leaders insisted that these laws went beyond the powers delegated by the amendments, arguing they were aimed at state action alone. Democrats took an even narrower view of their meaning. By the mid‐1870s enough northerners were alienated by the course of events to threaten Republican control of the national government. As a consequence, Republicans ended their most dramatic efforts to intervene in the South, allowing southern Democrats to regain control of their state governments through violence and fraud.

Dual Federalism

At first the federal courts seemed to sustain a broad interpretation of the power the Civil War Amendments had delegated to the national government to protect civil and political rights. However, by the time cases reached the Supreme Court, many Americans had begun to worry that national efforts to protect rights were undermining the federal system. In 1872 the Supreme Court heard its first case testing a Reconstruction law, Blyew v. United States. The Court's decision demonstrated its concern that congressional legislation might alter the federal system too radically. Blyew and an accomplice had been convicted in federal court of murdering blacks in Kentucky. Kentucky had indicted them, but federal marshals removed them from state hands and brought them to trial in the federal district court because Kentucky did not allow blacks to testify in cases to which they were not parties. The Court ruled that only the state and the defendant were parties in a criminal case and that therefore Kentucky's indictment of Blyew raised no issues under the Civil Rights Act. Congress, the justices held, could not have intended that the federal courts take jurisdiction of any case in which a party alleged that a black witness might give evidence.

This concern reflected the general understanding of federalism that most Americans shared in the nineteenth century. No matter where they drew it, nearly all agreed that there was some line separating state from federal jurisdiction and marking an area where state authority was supreme. Ordinary criminal law enforcement, health and safety regulations, and the day‐to‐day relations of local citizens all were on the state side of that line. Although the majority of the justices of the Supreme Court after the Civil War identified with the Republican party, they made clear that they adhered to this traditional understanding, which scholars call dual federalism. In cases such as Texas v. White (1869), the justices affirmed that the national and state governments were equally sovereign and supreme in their own spheres, with neither subject to the other within those spheres. In Collector v. Day (1871), the Court held that the Constitution imposed implied limitations on national authority to legislate within state jurisdiction, even when carrying out expressly delegated powers.

Like other Republicans, most of the justices were committed to the principle that in carrying out these responsibilities the states must not invade the liberty of citizens or discriminate against citizens on racial grounds. But the Blyew case had raised the specter that the national government would enforce that policy by replacing state law enforcement in general—in this case replacing the state's murder prosecution with its own. Since the enforcement sections of the Civil War Amendments gave the broadest latitude to congressional power, authorizing all legislation “appropriate” to carry out their provisions, the prospect was very real. According to the principle firmly established in the great case of McCulloch v. Maryland (1819), any federal laws that “are plainly adapted” to achieving a purpose authorized by the Constitution were “appropriate” and thus constitutional (p. 421).

The first dispute to directly test the meaning of the Fourteenth Amendment before the Supreme Court raised the problem starkly. It did not involve the rights of blacks at all. Instead, the Slaughterhouse Cases (1873) involved Louisiana butchers who claimed that a health law regulating the slaughtering of animals deprived them of their right as citizens to freely practice their occupations. Nothing could have been better calculated to demonstrate to the justices the far‐reaching potential of the Fourteenth Amendment. Even if the justices ruled that the law was a reasonable exercise of the state's police power, it would encourage future Fourteenth Amendment challenges to ordinary state laws simply by considering the issue. It would, the majority of the justices said, make the Court “a perpetual censor upon all legislation of the states” that could be construed to violate someone's civil rights (p. 78).

To avoid the result, the majority of the justices arrived at a tortured construction of the Privileges or Immunities Clause of the Fourteenth Amendment. The amendment barred the states only from depriving persons of those privileges or immunities they held as United States citizens, as distinct from those they held as state citizens. Ordinary rights, such as those to follow one's occupation, make contracts, and dispose of property were associated with state citizenship and were not the subject of the Fourteenth Amendment. The judges in effect avoided a result that Republicans had not intended when they passed the Fourteenth Amendment by construing an important section of it in a way they had not intended either. The result of this opinion, never reversed, was virtually to eliminate the Privileges or Immunities Clause as protection for civil liberty.

The Slaughterhouse decision did not make clear just what were the “privileges or immunities of citizens of the United States.” Some federal law‐enforcement officials maintained that they must include those specified in the Bill of Rights, since those were the privileges Americans had held in their relationship to the government of the United States. In Hurtado v. California (1884), the Court interpreted the meaning of the amendment's Due Process Clause in a way that clearly precluded it from protecting any of the liberties specified in the Bill of Rights.

The justices manifested a similar concern for maintaining the federal system in cases involving federal prosecutions of criminal conspiracies to deprive persons of their constitutional rights. They sustained the Ninth Circuit Court's vigorous defense of the rights of Chinese against discriminatory legislation in California and Nevada. The justices also firmly sustained national power to prosecute any state officer, even a judge, who violated Fourteenth or Fifteenth Amendment rights or laws governing federal elections; they rejected arguments that prosecution of state officials violated the basic tenet of dual federalism—that the state and national governments were equally sovereign and that neither could be subjected to the other. The justices dismissed dual‐federalist objections and sustained Congress's power to authorize the removal of cases from state to federal courts when parties could not secure equal rights there. But the Court drew the line when the federal government tried to prosecute private citizens who did not act under state authority. Replacing state enforcement of ordinary laws with federal enforcement posed too great a threat to the federal system.

The Court Restricts Reconstruction Reforms

In a series of cases, the justices tried to work out a position that both preserved the federal system and saved national power to protect the fundamental civil and political rights of the former slaves. To preserve traditional federalism the Court posited the state‐action doctrine of the Fourteenth Amendment, articulated with particular clarity in the Civil Rights Cases (1883). The amendment did not authorize the national government to protect rights directly, the justices held. The government could act only against state action that deprived rights. The Court's language has been taken to mean that only positive state actions are subject to the amendment. The Thirteenth Amendment, which was not framed in terms of state action, did authorize Congress to protect basic rights of freedom against violation from any source. But only the most fundamental of rights came under that protection. Despite its apparent state‐action language, the Fifteenth Amendment did invest people with a positive right to vote without racial discrimination, and Congress could enforce that right against anyone who violated it whether under color of state authority or not. Finally, the nature of the federal system implied that Congress had plenary authority over federal elections, and it could pass any law whatsoever to protect their integrity.

All this suggested rather broad congressional power to protect civil and political rights, but the actual decisions in which these positions were taken badly undermined the Republican Reconstruction program. Ironically, Republicans had avoided framing Reconstruction statutes in such a way as to specifically protect blacks from discrimination. The Court therefore declared several provisions of the Enforcement Acts unconstitutional because they failed to specify that private individuals could be prosecuted only if they deprived people of rights on account of their race or previous condition of servitude. Likewise, the Court found indictments wanting for failing to specify such racial motivations. In the political climate of the times, the decisions were perceived to be virtual endorsements of southern violence and signs of hostility to Reconstruction in general.

Likewise, the Civil Rights Cases, while articulating grounds under which Congress could protect fundamental rights under the Thirteenth Amendment, ruled the Civil Rights Act of 1875 unconstitutional. Observers naturally noted its trenchant articulation of the state‐action doctrine and the apparent endorsement of racial discrimination more than its reservation of power to Congress.

Finally, after Congress narrowly failed to pass a tough, new law to enforce the Fifteenth Amendment in 1890, new justices on the Supreme Court did take overtly racist constitutional positions. In Plessy v. Ferguson (1896) the Court sustained state‐required segregation of government and other public facilities in an opinion that not only found the laws constitutional but that seemed to endorse them. Although the decision found separate‐but‐equal facilities to conform to the Equal Protection Clause of the Fourteenth Amendment, the Court for decades ignored the equality part of the separate‐but‐equal doctrine and never applied it to laws mandating segregation of private business. In James v. Bowman (1903) the Court applied the state‐action doctrine to the Fifteenth Amendment (see Segregation, De Jure).

In sum, the Supreme Court's effort to preserve both the federal system and national power to protect rights proved a failure, and it has generally been condemned by historians and legal scholars, who have often failed to recognize the degree to which the effort was made. Beginning in the 1910s, the Court began a slow process of ruling unconstitutional state laws that too overtly violated the Civil War Amendments. Not until the middle of the twentieth century would it reverse the crippling decisions of the 1890s and 1900s.

Federalism and Economic Change

From its founding, the United States had always been a commercial nation. The Constitution itself was framed and ratified by men who believed that commercial success required stronger central government. But between the Civil War and the first decade of the twentieth century, commercial activity expanded and changed radically. A great revolution in transportation, precipitated by the application of steam engines to sea and land travel, created a national, and to some degree international, marketplace.

American agricultural products, always exported in large amounts, came into competition with newly opened European and Asian agricultural regions. Prices declined for many crops and economic pressure on farmers intensified, especially in the West and South, where farm debt was highest. Local manufacturers, no longer isolated, had to meet competitors from around the nation, although a system of protective tariffs kept international competitors out of American markets. Companies sought to survive price competition by increasing output while reducing production costs. Both goals were accomplished by the application of technology to manufacturing. Not only did new industrial technology increase the amount one worker could produce, it simplified jobs, permitting the substitution of low‐paid unskilled and semiskilled labor for highly skilled craftsmen.

Huge industrial concerns began to replace small producers. In 1900 nearly eleven million people worked in manufacturing, mining, construction, and transportation, with another three million in trade and finance, outnumbering those in agriculture by some three million.

The nationalization of the economy led the federal government to take a larger role in promoting and regulating it. Congress established a protective tariff to shelter American industries from international competition in their home market, created a national banking system, and regulated both the amount of currency in circulation and its distribution. It subsidized railroad and canal building, the improvement of harbors, the establishment of rural roads and stage lines, and the operation of international steamship companies. In 1887 Congress established the Interstate Commerce Commission to regulate railroads, and in 1890 it passed the Sherman Antitrust Act to combat overconcentration of economic power. It came under pressure to set an example in labor relations by establishing an eight‐hour day for government employees. Slowly, it began to exercise a national police power through regulation of interstate and foreign commerce and by barring the importation of undesirable goods and banning their distribution through the mail or interstate commerce. Some of these activities came under attack in the courts for going beyond the powers the Constitution delegated to the national government.

State Regulation

Economic and social changes also put pressure on state governments, which had to provide services to a growing, more urban population and faced demands from various groups to help cope with problems that grew out of the economic transition. Like the national government, state governments had always responded to demands to help develop American transportation and industry, but in a simpler society the free market had seemed to provide adequate regulation, with individuals protecting their own interests through freely made contracts. The triumphant antislavery movement had embodied this understanding, granting to black Americans the same ability to protect their interests as whites.

The fervor of the antislavery struggle recommitted most Americans to this system just as economic change made its effectiveness questionable. The traditional system had been based on a equality of power between contracting parties that the growth of big business destroyed. Yet many objected to demands for government regulation to protect farmers, workers, and others from the sometimes devastating effects of the change, or to protect consumers in general from the growing power of producers and transportation companies. Such regulations smacked of “class legislation”—the use of government power to benefit one person or class in the community at the expense of another. Shocked by the proliferation of demands for such legislation—by farmers, by workers, by blacks in the South and immigrants in the cities of the North—many Americans perceived a concentrated “socialistic” or “agrarian” demand for the redistribution of property. In response, they insisted that government had no right to redistribute wealth. The free market distributed rewards justly, they maintained, and the government must not intervene; it must follow the “let‐alone” principle—what political economists call “laissez‐faire.”

Moreover, since the national companies, especially the railroads and insurance industry, were controlled by northeastern financial interests, southerners and westerners viewed excess profits and rates that favored eastern over local merchants as exactions, unfairly transferring wealth from one region of the country to another. Some state regulations were designed to bring these “alien” forces under a degree of local control and prevent the worst abuses. In turn, the owners and managers of the regulated industries complained of local bias.

Nonetheless, state governments often responded to demands for regulations. At the behest of farmers and small businessmen many states passed so‐called Granger laws (named after the farmers' organization, the Patrons of Husbandry, or Grange). These laws created commissions to regulate the practices and rates charged by railroads and grain warehouses. They created safety bureaus to set working conditions in mines and dangerous industries. They barred contracts that called for payment in company scrip; they set maximum working hours; and they forbade the employment of women and children in certain capacities. As labor began to organize, some states banned yellow dog contracts, which made employment dependent on an agreement not to join a union.

Defeated in the legislatures, businessmen often turned to the courts—and ultimately the Supreme Court—for succor, arguing that such legislation violated constitutional protections of liberty, unfairly oppressed out‐of‐state corporations, or infringed on interstate commerce. The Court had to deal with the beginnings of the modern regulatory state in the framework of a federal system; it had to decide not only what the Constitution permitted government to do, but which government had the constitutional authority to do it.

The problem of adjusting constitutional doctrines of federalism to the modern national economy proved particularly difficult. The Court was committed to preserving the traditional federal system, yet it was extremely sensitive to the pressure on local governments to discriminate against outside economic interests on behalf of their own. Likewise, the justices were aware of the economic burdens that a myriad of conflicting local regulations placed upon national businesses.

The Court took a firm line when western and southern state and local governments tried to escape paying the principle and interest on bonds issued to subsidize railroad building or to avoid fulfilling guarantees to pay off railroad company bonds when a company defaulted. The issue arose as many railroads failed to complete their lines or went bankrupt in the hard times of the late 1860s and the 1870s. If the states succeeded in repudiating the debts, eastern and foreign bondholders would be the losers. Local governments alleged that many of the bonds were secured or issued fraudulently. State courts ruled guarantees of railroad bonds null and void because legislatures had lacked the constitutional authority to issue them. But in a line of cases stemming from Gelpcke v. Dubuque (1864) the Court protected the out‐of‐state investors, holding that such repudiation violated the Constitution's obligation‐of‐contracts clause.

The Court likewise protected representatives of out‐of‐state corporations from special taxes and discriminatory license fees. The key cases were Welton v. Missouri (1876) and Robbins v. Taxing District of Shelby County (1887). The first overturned a law requiring licenses to sell goods produced out of state, the second overturned a law requiring a license of all traveling salesmen. Similarly, the Court overturned freight taxes levied on interstate commerce.

The federal courts also took a generous view of the Removal Act of 1875, permitting almost any out‐of‐state corporation to remove a case from the state to the federal courts on an allegation of bias. At the same time, out‐of‐state corporations became more and more likely to take advantage of new laws to bring cases in federal rather than state courts. All this led to a significant increase in the business of the Supreme Court and the other federal courts, which ultimately forced Congress to restructure the federal judiciary in the Circuit Court of Appeals Act of 1891 (see Judiciary Act of 1869). That law created federal circuit courts of appeals with final jurisdiction in many areas, subject only to the Supreme Court's certification by writ of certiorari that it accepted an appeal.

Yet the justices also tried to maintain states' authority to regulate businesses within their boundaries. In Paul v. Virginia (1869), for example, they declared that the insurance business involved state rather than interstate commerce. They then reaffirmed the old rule that states could bar companies incorporated elsewhere from doing business within their boundaries. The Court sustained state taxes challenged on the ground that they inhibited interstate commerce. It sustained state temperance and prohibition legislation against challenges that it trespassed on the interstate commerce power reserved to Congress.

The Court at first sustained state efforts to regulate interstate railroads. In Munn v. Illinois (1877), it upheld the far‐reaching authority states granted to their railroad commissions. By the 1880s, however the Court decided that such authority was incompatible with the national transportation system that had developed. It began to overturn various health, safety, and civil rights laws that states had applied to interstate transportation companies. In Wabash, St. Louis & Pacific Railway Co. v. Illinois (1886), it limited state power over railroads in general, precipitating the creation of the Interstate Commerce Commission in 1887.

Supreme Court and Federal Regulation

While it sustained state regulatory power, the Supreme Court plainly was troubled when the national government used its delegated powers to secure ends normally considered within the police powers of the states. The crucial question was whether the Tenth Amendment, which reserves to the states or people all powers not delegated to the United States, precluded the national government from using delegated powers, such as that over interstate commerce, as means to secure undelegated ends. Such a construction lay at the heart of dual federalism, because it meant that there was a line separating state and national sovereignty that the national government could not cross. Therefore the Supreme Court quickly ruled unconstitutional a national law barring adulteration of kerosene with dangerous naphtha in United States v. DeWitt (1869). The Court held that states alone had the authority to pass such a safety regulation.

The Court's clearest and most controversial articulation of the dual‐federalist position came in United States v. E. C. Knight Co. (1895), when the national government brought suit under the Sherman Antitrust Act to break up a sugar refining company that controlled about 90 percent of all the sugar refined in the United States. The Court interpreted the Sherman Act to apply only to trading activities, not to production. Otherwise, the Court said, the act would infringe upon the exclusive right of the states to regulate local business.

Yet the Court sustained congressional use of the postal and commerce powers to promote good morals, perhaps because it viewed these laws as augmenting similar state regulations rather than as competing with them. Thus in Ex parte Jackson (1878) the Court sustained the Comstock Act (1873), which barred pornography from the mail. In Champion v. Ames (1903) it sustained a law banning the sale of lottery tickets through interstate commerce.

Property Rights

As the justices wrestled with questions of federalism and the economy, they also had to grapple with what property rights the Constitution secured against government regulation in general. The courts had a long heritage of protecting such rights. In the early years of the Republic, judges had agreed that laws occasionally wrongfully deprived individuals of vested rights—that is, property rights to which they had become fully entitled and that were not dependent on any contingent event. All agreed that governments could not simply confiscate property, for example. Particularly troubling were state laws that seemed to transfer a right to property from one person to another, or one group of people to another. By the 1840s it was quite common for state courts to hold that such legislative acts violated state constitutional provisions stating that one could be deprived of property only according to “the law of the land” or according to “due process of law.”

At the same time, the definition of property expanded dramatically. Originally limited to material things, “property” also came to refer to the commercial use one could make of them. Thus government limitations on the use of property, as well as physical takings, could be considered confiscation. This new conception of property increased the instances in which government regulations might be challenged as violations of vested rights. Nonetheless, before the Civil War, courts had ruled few regulations unconstitutional for violating property rights. States had a police power to regulate property rights for the benefit of the health, safety, and morals of the community, and so long as challenged laws served such a purpose, courts had held that they did not deprive persons of property without due process.

The Supreme Court had indicated a similar understanding of the meaning of “due process of law” in dicta in Scott v. Sandford (1857). The Constitution's Due Process Clause, however, appeared in the Bill of Rights, which according to Barron v. Baltimore (1833) limited only the federal government, not the states. Therefore, although limitations were able to secure relief when state legislation could be construed to impair the obligation of a contract, before the Civil War they could not appeal to the Supreme Court to overturn other state laws that deprived them of property without due process.

The ratification of the Fourteenth Amendment, which included both a Due Process Clause and a clause protecting privileges or immunities of citizenship, seemed to present the Court with the jurisdiction it had lacked. The Fourteenth Amendment was ratified just as demands grew for increased government action to cope with economic change and as opponents of such activity argued it amounted to class legislation that deprived them of property without due process of law. Litigants soon began to challenge various laws as violations of the Fourteenth Amendment.

Fearful of disrupting the traditional balance of the federal system, the Court at first rejected the invitation to use the Fourteenth Amendment to limit state authority in the Slaughterhouse Cases. However, the four dissents in that decision encouraged further attempts. Almost immediately railroad companies made a concerted effort to overturn the Granger laws, insisting that the maximum rates set by the state railroad commissions amounted to confiscation of their property for the benefit of the shippers. Once again a narrowly divided Court refused to intervene. In Munn v. Illinois (1877), the justices reasoned that some businesses, such as inns, mills, warehouses, and roads, had traditionally been “affected with a public interest” and therefore were subject to broad government regulation.

But conflict over economic regulation grew more intense in the 1880s and 1890s, which were punctuated by strikes and labor‐related violence. The People's party, or Populists, gained widespread support in the early 1890s by calling for government action to remedy the inequities of the new industrial system. In 1896 the Democratic party seemed to endorse the calls for radical reform, entering the presidential election on a platform of inflating the currency to help southern and western debtors at the expense of north‐eastern and urban financial interests.

These proposals challenged conservatives' conceptions of constitutional liberty, and the Court came under ever‐greater pressure to limit how far government could go in regulating property rights. Even as it sustained state economic regulations in the 1870s and 1880s, the Court explicitly reserved the power to rule truly confiscatory laws unconstitutional. Finally, as Populist strength grew, the justices became convinced that the Court must serve as the bulwark of property rights against threatened radical legislation. In the 1890 Minnesota Rate Case—Chicago, Milwaukee & St. Paul Railway Co. v. Minnesota—the Court ruled a railroad commission law unconstitutional because it provided for no judicial review of the reasonability of the rate. An unreasonably low rate would be confiscatory and unconstitutional. Implicitly, the justices were imposing on the courts an obligation to determine what rate was reasonable (see Rule of Reason). In Reagan v. Farmers' Loan & Trust Co. (1894) and Smyth v. Ames (1898), the Court finally held particular state‐imposed rates unconstitutional. From that time forward shippers regularly appealed rate decisions to the courts, which often overturned them.

The Court similarly constricted the authority of the new federal Interstate Commerce Commission. In a series of decisions in the 1890s it denied that the law creating the commission had empowered it to set rates; the Court also limited the ICC's investigative powers. The Court ruled that Congress could not establish an income tax in Pollock v. Farmers' Loan & Trust Co. (1895). The opinion concentrated on technicalities of constitutional languages, but the underlying concern was that the tax applied only to those who made more than a certain income, once more raising the specter of class legislation. With these decisions, the Court accepted the argument that various provisions of the Constitution incorporated the moral and economic principle of laissez faire and that government could not interfere with the free market's distribution of economic wealth and power. The decision in the E. C. Knight Case, limiting the government's power to fight trusts, confirmed the perception. Meanwhile, the Court sustained the power of government to intervene to break strikes that affected interstate commerce or mail delivery. Although the justices had limited the scope of the Sherman Antitrust Act's application to business, it sustained its application to labor unions (see Antitrust).

The Court also began to scrutinize state police regulations more closely for signs that they infringed on property rights. In Allgeyer v. Louisiana (1897), the Court declared that the individual's liberty to make contracts was one of the liberties that government could not infringe without due process of law. This placed at risk any regulations that limited the outcomes of free negotiations to set prices, wages, work conditions, or any other economic relationship. In the classic case of Lochner v. New York (1905), a divided Court applied this principle of “liberty of contract” to overturn a law limiting the working day of bakers to ten hours. Such an interference with freedom of contract was constitutional only if the Court could be convinced that such a law served some general community interest in health, safety, or morals. Otherwise the substance of the law, no matter how fairly enforced, violated due process of law—a notion legal scholars call “substantive due process.” In 1908 the Court in Adair v. United States ruled unconstitutional a federal law that barred interstate transportation companies from requiring workers to promise not to join unions as a condition of employment.

These cases were signals for a wholesale assault on regulations of the workplace in the state and federal courts. For a law to pass muster as a constitutional police regulation, courts had to be satisfied that it served their constricted view of the general welfare rather than the economic interest of some favored group. The courts, state and national, had become committed to “laissez‐faire constitutionalism”—reading the Due Process Clause, the Contracts Clause, the tax clauses, and other parts of the Constitution to incorporate laissez‐faire principles.

Progressivism

The Courts came under bitter attack for their narrow view of what legislation served the general welfare. Social reformers, farmer and labor groups, economists, and large numbers of academics and intellectuals insisted that the complexities of the modern industrial state necessitated wide‐ranging government activity that did, in fact, serve the general welfare. They called for a “general‐welfare state” rather than a “laissez‐faire state.” The decision of what was in the general interest should be left to democratic decision in the state legislatures and Congress, they insisted. Courts should exercise judicial self‐restraint and rule unconstitutional only those laws that unambiguously and without doubt violated the words of the Constitution. They should make themselves aware of the practical, social purpose of law and decide cases in light of those purposes, rather than engage in formalistic legal reasoning that ignored the real world. Oliver Wendell Holmes became the spokesman for such views on the Supreme Court, filing a celebrated, trenchant dissent in Lochner v. New York.

In the first decades of the twentieth century, the so‐called Progressive era, these ideas swept the nation. State legislatures and Congress passed wide‐ranging regulations to protect consumers from dangerous products, to combat vice, to control business practices, to improve working conditions, and to render more equal the economic power of business, labor, and consumers (see Progressivism).

Many Progressives proposed action to limit the power of state and federal judges, but judges, too, came to see that Progressive legislation served the general welfare and generally sustained them against constitutional challenges. The Supreme Court ratified the expanded jurisdiction of the federal government, unequivocally recognizing a national police power in Champion v. Ames and McCray v. United States (1904). The national power to regulate interstate commerce and to levy taxes, the justices held, was plenary and absolute. It could be used to serve the health and safety of the community—by regulating what passed through interstate commerce or banning transportation of undesirable goods entirely, or by levying prohibitively high taxes to suppress undesirable products. That such laws had the character of police regulations, traditionally within state jurisdiction, did not affect their constitutionality as regulations of interstate commerce. Thus the Court seemed to abandon the key tenet of dual federalism. In response, the federal government passed numerous interstate commerce regulations designed for other general‐welfare purposes.

Likewise, the Court abandoned its cramped interpretation of the Sherman Antitrust Act. It allowed federal health and safety regulation of local businesses at the source or terminus of what it now saw as a stream of commerce, and it sustained government regulations governing almost every aspect of employment in interstate transportation companies.

Prodded by legal briefs that included sociological data, first submitted by Louis D. Brandeis in Muller v. Oregon (1908), the justices expanded their understanding of what legislation might serve the general welfare (see Brandeis Brief). In that case, the Court sustained legislation setting maximum hours women might work in public laundries, accepting the principle that the general welfare was served when legislation took into account the special circumstances of dangerous or unhealthy occupations and vulnerable workers, such as women and children (see Gender). The Court also sustained workmen's compensation laws, which required employers to contribute to a fund to protect workers against the economic consequences of accidents. In general the Court accepted a broad range of laws that interfered with “liberty of contract.”

The Court's progressivism culminated in decisions sustaining pervasive economic controls imposed by Congress during World War I. National defense was so clearly related to the public welfare that the Court sustained price and rent controls and other rigorous wartime regulations of the American economy (see also War).

As most Americans endorsed a return to “normalcy” after war's end, however, the Supreme Court also retreated from Progressivism. In the child‐labor cases of Hammer v. Dagenhart (1918) and *Bailey v. Drexel Furniture Company (1922), the Court revived dual‐federalist limitations on the national interstate commerce and taxing powers, holding that neither could be used to suppress child labor. Regulation of employment of companies not engaged in transportation was within state, not federal, jurisdiction. Then, in Adkins v. Children's Hospital (1923), the Court ruled that a minimum wage for women interfered with liberty of contract in a way that could not be justified as serving the general welfare. The Court seemed to have revived dual federalism and laissez‐faire constitutionalism. The resulting confusion would not be resolved until the constitutional crisis precipitated when the Court applied these principles to the New Deal.

Bibliography

Michael Les Benedict , Preserving Federalism: Reconstruction and the Waite Court, Supreme Court Review (1978): 39–79.
Michael Les Benedict , Laissez Faire and Liberty: A Re‐Evaluation of the Meaning and Origins of Laissez‐Faire Constitutionalism, Law and History Review 3 (1985): 293–331.
Loren P. Beth , The Development of the American Constitution, 1877–1917 (1971).
Charles Fairman , History of the Supreme Court of the United States, vols. 6–7, Reconstruction and Reunion, 1864–88 (1971, 1987).
Robert J. Kaczorowski , The Politics of Judicial Interpretation: The Federal Courts, Department of Justice and Civil Rights, 1866–1876 (1985).
Stanley I. Kutler , Judicial Power and Reconstruction Politics (1968).
John J. Semonche , Charting the Future: The Supreme Court Responds to a Changing Society, 1890–1920 (1978).
William F. Swindler , Court and Constitution in the Twentieth Century: The Old Legality, 1889–1932 (1969).

Michael Les Benedict

The Taft Court

By the end of World War I, however, a distinctly conservative tone had set in, despite the appointment of the liberals Louis D. Brandeis and John H. Clarke to the bench, as evidenced in the first child labor case, Hammer v. Dagenhart (1918). This conservative cast took a distinctly stronger tone with the appointment of William Howard Taft as chief justice in 1921.

The Court during the decade that Taft occupied the center chair is a study in contradictions. On the one hand, it took an uncompromisingly probusiness stance and steadfastly opposed both state and federal efforts to regulate the economy; on the other, it showed a clear sympathy for individual liberties.

Probusiness Decisions

Given the makeup of the Court, its tilt in favor of business is hardly surprising. Taft strongly believed in the sanctity of property rights and assumed that the Court should play a major role in sustaining a constitutional system that upheld those rights. Taft found a strong ally in Justice James C. McReynolds, the near‐reactionary former attorney general whose antitrust sentiment had led President Woodrow Wilson to mistakenly assume that McReynolds was a progressive. Taft used his political influence with the Harding administration to secure the appointment of George Sutherland, Pierce Butler, and Edward Sanford to the bench. Together with Justices Willis Van Devanter and Mahlon Pitney, whom Taft had appointed when was president, they made a comfortable majority to strike down legislation that attempted to regulate business. Only Justices Oliver Wendell Holmes and Brandeis opposed this view; Justice Clarke had resigned from the Court in 1922 to take up the work of the League of Nations.

The environment of the 1920s strongly favored business, so much so that Calvin Coolidge could say that “the business of America is business.” Industry expanded enormously in the postwar decade and in doing so significantly raised the American standard of living. By the time Herbert Hoover ran for president in 1928, he could confidently predict that poverty would soon disappear from American life. Just let businessmen alone, and the free enterprise economy would do the rest (see Capitalism).

The conservative majority on the Court shared this sentiment. It practically emasculated the Federal Trade Commission in FTC v. Curtis Publishing Co. (1923), in which Justice McReynolds dismissed the FTC's factual investigation and held that courts could reexamine evidence de novo. A business could thus stymie the FTC by claiming that it had not evaluated the evidence properly and then tie up the agency in court for years. The Court had similarly tied the hands of state regulatory agencies in Southwestern Bell Telephone Co. v. Public Service Commission of Missouri (1923).

The antilabor bias that had marked the Court for more than three decades continued unabated during the 1920s, even though labor leaders believed they had won a significant victory in the Clayton Antitrust Act of 1914. Section 6 of that act had specifically declared that labor did not constitute a commodity or an article of commerce and that the antitrust laws should not be used to hinder unions seeking legitimate objectives. Section 20 directly responded to the widespread use of injunctions against unions, prohibiting federal courts from issuing injunctions in labor disputes “unless necessary to prevent irreparable injury to property, or to a property right.”

Despite the clear intent of the law, the Taft Court found a way around it. In *Duplex Printing Press Co. v. Deering (1921), Justice Pitney interpreted the law not to apply to secondary boycotts and held that injunctions could therefore be issued not only against the immediate parties to the labor disputes but also against anyone trying to help the unions. This decision came immediately after Truax v. Corrigan (1921), in which the Court voided a state anti‐injunction statute. The two decisions are indicative of what some scholars have labeled dual federalism, a gray area in which neither the states nor the federal government could operate. As a result, both state and federal courts continued to issue injunctions in labor disputes as if the Clayton Act had never been passed, and the matter was not settled until Congress passed the Norris‐LaGuardia Anti‐Injunction Act in 1932, when the depression had undermined the influence of business interests.

Protective legislation also fared poorly in the Taft Court. After the first child‐labor case, in which the Court had said that Congress could not regulate child labor under the Commerce Clause, Congress had passed a second bill, utilizing its taxing powers, which up to that time had been considered practically unlimited (see Commerce Power). Nonetheless, in Bailey v. Drexel Furniture Co. (1922), the Court struck down the second Child Labor Act on the grounds that Congress could not use the taxing power to achieve an end forbidden it under the Commerce Clause (see Taxing and Spending Clause).

But the one decision that epitomized the probusiness attitude of the Court in this era was Adkins v. Children's Hospital (1923), which led even some conservatives to protest. In striking down a District of Columbia minimum‐wage statute for women, Justice Sutherland resurrected the Lochner doctrine and reaffirmed the supremacy of freedom of contract in economic affairs. By this time the nation believed, based on several court decisions going back to Muller v. Oregon (1908), that states and the federal government could protect women under the police power. Sutherland, however, held that the Nineteenth Amendment had emancipated women and that they no longer needed special protection (see Gender). This proved too much even for Taft, who could hardly be described as a liberal, and who issued one of his rare dissents, claiming that Congress had the power to pass such legislation and that the courts should not interpose their views concerning the wisdom of such legislation.

Following Adkins, the Court found approximately 140 state laws unconstitutional, most on the grounds that they violated the rights of property and contract guaranteed by the Due Process Clause of the Fourteenth Amendment. Even where there had been a clear line of precedent supporting regulatory legislation, the Court reinterpreted it in a probusiness manner. Thus in Wolff Packing Co. v. Court of Industrial Relations (1923), Taft struck down a state experiment in labor relations by taking a narrow view of “business affected with a public interest.” But practically no enterprise would fit into this category, a conclusion reinforced in Tyson v. Banton (1927) and Ribnik v. McBride (1928) when the Court voided state efforts to control ticket and employment agencies, both of which, it said, had no relation to public interest regardless of what the state had decided.

It is hardly surprising that throughout the decade the National Association of Manufacturers passed resolutions praising the Supreme Court as the “indispensable interpreter of our written Constitution” and the protector of property from the “babel voices of the mob.” So long as the nation continued to be prosperous, it appeared that business could do no wrong, and the Court, despite powerful protests from Justices Holmes and Brandeis, would make sure that government did not interfere with business.

Civil Liberties

One might have expected that a Court so overwhelmingly probusiness and antilabor would have been indifferent if not actually hostile to civil rights and civil liberties. There are some cases that support this view, such as the infamous Buck v. Bell (1927), in which Holmes upheld a state compulsory sterilization law on the grounds that “three generations of imbeciles are enough” (p. 207). The Court that had shown little concern for freedom of speech in the postwar years a decade later upheld government investigation through wiretaps in Olmstead v. United States (1928). Yet the story is not simple. The clash between tradition and modernism going on in the larger society had its reflex within the Court, which during the 1920s took the first steps toward a modern jurisprudence of civil rights and civil liberties.

Although reformers won few victories during the 1920s, the reform spirit remained alive in Congress and the states through the efforts of people like Wisconsin senator Robert M. La Follette, New York senator Robert Wagner, and labor reformer Florence Kelley. The spirit of legal reform, at least in the academies, also showed itself far from dead. Legal scholars at Yale and Columbia established the foundations of “legal realism,” which would revolutionize legal thinking in the years to come.

Holmes, in his Lowell Lectures on the common law in 1881, had suggested that all sorts of nonlegal matters affected the law even more than abstract logic. During the early part of the century, advocates of “sociological jurisprudence” had used this insight in an effort to get courts to take economic and social facts into account; the most famous example was the brief Brandeis submitted in the Muller case to support the Oregon working‐hours law (see Brandeis Brief).

The legal realists went even further, seeing law not as fixed but as constantly in flux, responding to changing social conditions. Moreover, as Karl Llewellyn and others argued, one had to look not at legal rules but at how law actually came to be, and this involved a wide variety of social, economic, and even psychological factors. Judges did not “discover” law; they made it, and the courts provided the creative response necessary to keep law abreast of the times.

The realists found some allies on the bench, such as Learned Hand and Benjamin N. Cardozo, but on the Supreme Court they looked especially to Brandeis. Although we often talk about “Holmes and Brandeis” dissenting, Holmes is remembered mostly for his wit, style, and ability to sum up an argument in a pithy epigram while Brandeis, in his lengthy dissents, provided the analysis of the law and, especially, the facts and conditions surrounding a law that would influence future jurisprudence.

Brandeis led the way, for example, in his dissent in Gilbert v. Minnesota (1920), a speech case in which he suggested for the first time that the liberties protected by the Fourteenth Amendment might include civil liberties as well as property rights. That argument began to take on substance when Justice McReynolds, in Meyer v. Nebraska (1923), struck down a state law forbidding the teaching of foreign languages in elementary school. Liberty, McReynolds declared, went beyond freedom from bodily restraint to include “those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men” (p. 399). (See Education.)

Two years later, McReynolds again spoke for a unanimous Court in Pierce v. Society of Sisters (1925) in striking down an Oregon law, inspired by the Ku Klux Klan, that had the clear intent of driving Catholic schools out of business. McReynolds found the right to educate one's children to be another liberty protected by the Fourteenth Amendment. This decision led the American Civil Liberties Union to challenge a New York Criminal Anarchy Act on the grounds that it violated free speech.

Ever since Barron v. Baltimore (1833) the Bill of Rights had been held to apply only to the federal government and not to the states. Brandeis's suggestion that the Fourteenth Amendment somehow “incorporated” the provisions of the first eight amendments, making them applicable to the states as well as to the federal government, bore fruit in Gitlow v. New York (1925). Although a 7‐to‐2 majority of the Court upheld the New York statute, Justice Sanford noted that “for present purposes we may and do assume that freedom of speech and of the press—which are protected by the First Amendment from abridgement by Congress—are among the fundamental personal rights protected by the due process clause of the Fourteenth Amendment from impairment by the States” (p. 666). It would be several years before the full impact of this holding would be felt, and it would then trigger a major jurisprudential debate over the extent to which the Fourteenth Amendment incorporated other rights (see Incorporation Doctrine).

The Taft Court, however, began this process of “nationalizing” rights in an area that had traditionally been left entirely to the discretion of the states, criminal law. In Moore v. Dempsey (1923), Holmes ruled that a federal court should hear the appeal of five African‐Americans, convicted of first‐degree murder by an Arkansas state court, where the constant threat of mob violence had tainted the proceedings. And in the infamous Scottsboro case, Powell v. Alabama (1932), Justice Sutherland specifically applied the Fifth Amendment right to a fair trial to the states (see Trial by Jury).

Not all of the Taft Court decisions furthered civil rights or civil liberties. In Corrigan v. Buckley (1926), the justices unanimously refused to invalidate racially restrictive covenants as violative of due process. The justices also showed little concern for other racial groups, upholding a variety of state and federal restrictions on Asians and aliens. For instance, the Court in United States v. Schwimmer (1929) sustained the denial of a citizenship application because of the applicant's pacifist views.

Even though the Court extended the reach of the First Amendment, a majority showed little concern for the actual protection of free speech. In one of the most famous cases of the decade, Whitney v. California (1927), the majority upheld the conviction of Anita Whitney under the California Criminal Syndicalism Act for helping to organize a communist party in that state. Justice Brandeis concurred in the result on technical grounds, but his opinion remains one of the strongest defenses of freedom of speech ever penned by a member of the Court, setting out for the first time the idea of free speech as an essential requisite for active citizenship in a republic.

Brandeis also claimed that the Constitution protected privacy in his dissent in the wiretapping case, Olmstead v. United States. Chief Justice Taft's opinion for the majority declared that, since there had been no actual physical intrusion into the house, wiretapping did not violate the Fourth Amendment. This elicited a short dissent from Holmes, who called wiretapping a “dirty business,” and a longer and well‐reasoned scholarly analysis from Justice Butler, generally considered a conservative. But Brandeis, in dissent, evoked the spirit of the Fourth Amendment, which he declared protected Americans in their right to be let alone, “the most comprehensive of rights, and the right most valued by civilized man” (p. 478). Wiretapping remained legally permissible, although Congress outlawed the use of wiretap service in federal courts in 1934. Not until Berger v. New York (1967) did the Court overrule Olmstead and adopt the Brandeis view. Two years before that, in Griswold v. Connecticut (1965), the Court recognized privacy as a constitutionally protected right.

The Hughes Court

The mixed record of the Court during the Taft years left no clear legacy to its successors, although its hesitant first steps in incorporating the Bill of Rights and establishing national standards would lead the way to one of the great jurisprudential developments of the twentieth century. But the underlying context of the Taft Court—the probusiness attitude of the nation—collapsed in late 1929. When Charles Evans Hughes took Taft's place in the center chair, he and the Court faced a variety of new challenges generated by the Depression and Franklin D. Roosevelt's New Deal efforts to deal with the economy.

The Hughes Court retained a solid bloc of four conservative judges—McReynolds, Van Devanter, Sutherland and Butler—opposed to any and all efforts by the government to regulate business. The smaller bloc of liberals would have permitted the states and the federal government greater leeway in responding to the crisis. This group consisted of Justices Brandeis, Harlan Fiske Stone, and the widely respected Benjamin N. Cardozo, who had taken Holmes's place in 1932. In the middle of this spectrum were Hughes and Justice Owen J. Roberts, appointed to the Court by Herbert Hoover in 1930, either one of whom would give the “Four Horsemen,” as the conservative bloc came to be known, a majority in opposing reform legislation.

The New Deal under Fire

State efforts to regulate business reached the Court in New State Ice Co. v. Liebmann (1932). Oklahoma had attempted to stabilize the ice market by requiring new entrants to secure a certificate of convenience. The majority struck down the bill as exceeding the state's power and denied that ice‐making affected the public interest. Justice Brandeis's dissent is notable for several reasons. First, he painstakingly explored the various economic factors that had led the state to pass the legislation. Second, he called on his fellow justices to practice judicial self‐restraint and not interpose their views in place of the action of duly elected legislators. And then, in a most eloquent manner, he spoke of the nature of federalism and the advantages of having individual states serve as social laboratories in the face of an overwhelming national crisis.

Onlookers believed that perhaps this message had gotten through, because soon afterwards the Court did uphold two state laws aimed at ameliorating the effects of the depression. It sustained a Minnesota mortgage moratorium in Home Building and Loan Association v. Blaisdell (1934) and a New York price‐fixing statute in Nebbia v. New York (1934). These decisions, both reached by bare 5‐to‐4 majorities, did not bode well for the New Deal, which unlike any reform movement that preceded it tried to manage as well as reform the economy. President Roosevelt compared the depression to war and proposed drastic and innovative legislation to deal with the crisis. Without getting into the question of whether the New Deal actually relieved the Depression, one can say that conservatives bitterly opposed the government's efforts to regulate the economy and especially its efforts to help labor and other underprivileged groups. One can also say that the American people, as evidenced in the 1936 election, overwhelmingly supported the New Deal. They agreed with Roosevelt's philosophy that something had to be done—and that if one measure did not work, something else should be tried. The New Deal can be seen, in part, as the legislative analogue of legal realism, with its emphasis not on abstract theory but on fact: that is, did a program work or not.

This pragmatism left the conservative bloc on the Court aghast, and beginning in 1935 it struck down state and federal laws one after another. It voided the oil regulation section of the National Recovery Administration in Panama Refining Co. v. Ryan, the highly praised Railroad Retirement Act of 1934 in Retirement Board v. Alton Railroad Co., and then, on Black Monday, 27 May 1935, it invalidated the National Industrial Recovery Act in Schechter Poultry Corp. v. United States, the Frazier‐Lemke Mortgage Act in Louisville Joint Stock Land Bank v. Radford, and severely restricted the president's power to remove members of independent regulatory commissions in Humphrey's Executor v. United States (see Appointment and Removal Power). Soon after, it voided New York's model minimum‐wage law in Morehead v. New York ex rel. Tipaldo (1936), struck down the Agricultural Adjustment Act in United States v. Butler (1936), and invalidated the Guffy‐Snyder Coal Act in *Carter v. Carter Coal Co. (1936).

Not all of these were 5‐to‐4 decisions. In some cases Chief Justice Hughes joined with the conservatives to make it a 6‐to‐3 vote. In a few instances, such as the case involving the NRA, even the liberals believed the statute so badly drawn that they also voted to invalidate. And the administration did win a few decisions. By narrow votes the Court sustained the New Deal's abandonment of the gold standard in the Gold Clause Cases and also upheld the Tennessee Valley Authority in Ashwander v. Tennessee Valley Authority (1936).

The Court‐Packing Plan

Despite these few victories, the administration believed that it could not get its reform measures past the Court, and, shortly after his landslide victory in the 1936 election, Roosevelt unveiled his court‐packing plan, which would have added up to six justices on the high court and forty‐four on the lower benches. Although Roosevelt claimed that he only wanted to alleviate a crowded docket, the transparency of the scheme doomed it. Chief Justice Hughes, joined by Justices Brandeis and Van Devanter, wrote a letter to the Senate Judiciary Committee denying that the Court had fallen behind in its work. An increase in justices, instead of making the Court more efficient, would only cause delays because of “more judges to hear, more judges to confer, more judges to discuss, more judges to be convinced and to decide.”

Conservatives opposed the plan, but so did many liberals and moderates who perceived the plan as an attack on the independence of the judiciary. Moreover, if a liberal president could pack the Court now, then a conservative could do the same in the future. After months of bitter debate, the Senate finally voted the measure down on 28 July 1937.

By then, however, the president might well have believed that even if he had lost the battle, he had won the war. In West Coast Hotel Co. v. Parrish (1937), decided in the midst of the court‐packing battle, the Court sustained a Washington State minimum‐wage law in a case practically identical to Morehead. This time Justice Roberts voted to sustain the measure, leading wags to claim that “a switch in time saves nine.” Actually, the case had been heard and decided—but not announced—before Roosevelt's message. Roberts, who always hewed to a narrow definition of judging, never explained his vote, but his papers indicate clearly that in the earlier case, counsel had not asked the Court to overrule the Adkins holding and that he therefore felt bound to decide Morehead in light of Adkins. In the later case the lawyers did ask the Court to reconsider Adkins; Roberts did, found it wanting, and in West Coast Hotel voted to overrule it.

After West Coast Hotel the Court sustained every New Deal measure that came before it. Moreover, with the retirement of Justice Van Devanter, Roosevelt now had the opportunity of naming men sympathetic to the New Deal, which he proceeded to do. In 1938 he appointed Hugo Black and Stanley Reed; in 1939 Felix Frankfurter and William O. Douglas joined the bench; and in the next few years Frank Murphy, Robert H. Jackson and Wiley Rutledge came on board. Instead of the cramped and narrow interpretation of federal powers that the “Four Horsemen” had espoused, the Roosevelt Court adopted a far more expansive view of the commerce and taxing powers. By the time the Court decided Wickard v. Filburn (1942), it had expanded the affecting commerce doctrine so that almost any activity could be so defined.

One might well look at the court‐packing fight as a marker to delineate the changing agenda of the Supreme Court. Prior to 1940, the bulk of the Court's cases, and the controversy surrounding them, dealt with economic matters—the balancing of property rights against legislatively determined public welfare. With the transformation of the Court following 1937, economic matters played an increasingly smaller and less important role on the Court's agenda. As Brandeis had urged, so long as the legislature had the power, judges should defer to the wisdom of the elected branches and not interpose their own policy views. Although the Court continues to hear economic cases, it has established a rule of great deference to the legislature, sustaining economic regulations if at least a rational basis can be put forward to explain the legislative policy.

The Court also extended a far greater tolerance to state legislation, reviving the nineteenth‐century rule of Cooley v. Board of Wardens (1852) that in areas where the federal government had not asserted its commerce power the states could exercise their own authority (see Selective Exclusiveness). And, once again following Brandeis's assertion that in a federal system national courts should wherever possible follow local law, the Court did away, at least temporarily, with federal common law doctrines in Erie Railroad Co. v. Tompkins (1938). By the eve of World War II, the Supreme Court stood poised to go down a new path, one that would constitute the bulk of its agenda for the rest of the century, namely, marking out how far the Constitution protected individual rights and liberties.

Incorporation Doctrine

The question of rights, of course, had never been totally absent from the docket, but beginning in the 1920s, with the idea of incorporation, it took on a new immediacy. Starting in the late 1930s, more and more cases testing the reach of constitutional liberties came before the Court, triggering one of the major jurisprudential debates in its history.

In 1937 the Court heard Palko v. Connecticut, in which the defendant in a state criminal prosecution claimed that the Fourteenth Amendment applied the Fifth Amendment's guarantee against double jeopardy to the states. Justice Cardozo said that it did not and put forward a theory of “selective incorporation.” The Fourteenth Amendment did, he said, incorporate all the provisions of the First Amendment, since freedom of expression is “the matrix, the indispensible condition” (p. 327) for nearly every other form of freedom. (The Press Clause had been incorporated earlier in Near v. Minnesota, 1931). But as for the Second through Eighth Amendments, the Court should apply only those that are “of the very essence of a scheme of ordered liberty” and so deeply rooted in American traditions as to be considered fundamental (p. 325).

World War II

Over the next ten years, Justice Black, who voted with the majority in Palko, grew increasingly uncomfortable with selective incorporation because he believed it left too much discretion in the hands of justices. He finally reached the point he was seeking a decade later, in his dissent in Adamson v. California (1947), where he put forward the idea of “total incorporation.” All the guarantees of the first eight amendments, Black said, applied to the states as well as to the federal government.

The chief opponent of Black's view, and the main defender of selective incorporation, was Justice Frankfurter, who also argued for judicial deference to legislatures. Frankfurter exercised a great deal of influence on the Court in the 1940s and early 1950s, but as the Court's agenda moved from economic matters to individual liberties, his notion of deference began to strike some of his colleagues as judicial abdication.

Flag‐Salute Cases

The debate began in earnest during the early years of World War II with several religion cases. Jehovah's Witnesses brought a number of suits charging that various regulations, while not aimed specifically at them, nonetheless impinged on their free exercise of religion. The most famous of these were the flag‐salute cases, which showed how some members of the Court came to realize that rights cases called for a different judicial attitude than economic regulation.

In the first flag‐salute case, Minersville School District v. Gobitis (1940), Frankfurter spoke for an 8‐to‐1 majority in holding that a school could require children to salute the flag, since the necessity for inculcating patriotism was of sufficient importance to justify a relatively minor infringement on religious belief. The courts, he declared, should defer to legislative wisdom in these matters.

Only Justice Stone dissented, but as reports began filtering in of attacks on Witnesses, and as the Court heard other cases regarding Witness beliefs, several justices changed their minds, and in West Virginia State Board of Education v. Barnette (1943), the Court declared that the state could not impinge on the First Amendment by compelling the observance of rituals.

Japanese‐American Internment

The flag‐salute cases arose in the context of a nation at war, and both the Roosevelt administration and the Court seemed determined to avoid the infringements on civil liberties that had occurred during World War I. For the most part, the Court maintained its regard for civil liberties during the war; the one exception proved to be the worst blot on the Court's record in this century, the Japanese internment cases.

Following Pearl Harbor, anti‐Japanese fear on the west coast led the Roosevelt administration to order all persons of Japanese descent, whether Issei (Japanese nationals) or Nisei (American‐born citizens), relocated to internment camps. The military also imposed a curfew on Japanese‐Americans and set rules that made it impossible for them to stray on the west coast without violating the law.

Within the Court the justices disagreed seriously on the constitutionality of the internment, but they also realized the problem of invalidating an executive program that the commander in chief had said was vital to the war effort. Stone, whom Roosevelt had elevated to chief justice following Hughes's retirement in 1941, managed to talk the dissenters into going along with the program for the sake of the war, and the Court unanimously upheld the curfew in Hirabayashi v. United States (1943), although Justices Murphy, Douglas, and Rutledge entered concurring opinions that practically amounted to dissents.

In Korematsu v. United States (1944), the majority sustained the detention without addressing the central issue of whether singling out a particular race violated the Equal Protection Clause. Justice Black's opinion glossed over this question and focused on the president's war powers. This time Justices Murphy, Roberts, and Jackson entered vigorous dissents, stating bluntly that Japanese‐Americans had been singled out because of race. By then the tide of war had shifted, and in the fall the Court ordered the release of a Japanese‐American woman whose loyalty had been firmly established in Ex parte Endo (1944). (See Race and Racism.)

Ever since, there has been a general condemnation of the internment program as well as of the Court's condoning it. Perhaps it is too much to expect judges to remain free of the wartime passions that grip the rest of the nation, but there is a certain irony in comparing Stone's famous footnote four in the Carolene Products case, which called for a “more exacting judicial scrutiny” in cases touching on race, and his opinion in Hirabayashi, which condemned discrimination in general and then approved it in this case.

Stone, as it turned out, proved to be less than ideal as chief justice. He had earned a solid reputation as a good jurist and a liberal in the sixteen years he had been an associate justice, and at Frankfurter's suggestion Roosevelt had elevated the Republican Stone to the center chair as a gesture of wartime unity. Stone's misfortune was to preside over one of the most cantankerous courts in the nation's history. Justice Frankfurter's effort to gain intellectual dominance over his colleagues ran into the twin obstacles of Justices Hugo Black and William O. Douglas, who soon came to epitomize judicial activism and the expansion of individual liberties just as Frankfurter stood for judicial restraint and minimalism. Frank Murphy may have been one of the most liberal persons ever to sit on the bench, while the more conservative Owen Roberts and Robert Jackson tended to side with Frankfurter. By 1943 most of the decisions the Court handed down had multiple opinions.

The Vinson Court

Chief Justice Stone died of a cerebral hemorrhage in April 1946, and Fred Vinson took his place that fall, but before he did so, a truncated Court turned down the first challenge to malapportioned legislatures in a number of states (see Fair Representation). With Justice Jackson at the Nuremberg trials, Justice Frankfurter spoke for a 4‐to‐3 majority in Colegrove v. Green (1946), holding that apportionment constituted a political question and was therefore nonjusticiable. The case highlighted the differing philosophies on the bench, with Frankfurter warning the Court to avoid what he called the political thicket and to accept whatever inequities resulted from malapportionment as an inevitable cost of the federal system. Justice Black, joined by Justices Douglas and Murphy, anticipated the philosophy of the Warren Court era, and argued that such a blatant violation of equal protection could certainly be handled by the courts—and that, in fact, the judiciary had a responsibility to do so (see Reapportionment Cases).

Chief Justice Vinson only presided over the Court for seven years, yet during that time the Court underwent a significant transformation. Although the Court would not decide the school desegregation cases until 1954, the judicial battle for civil rights began to pick up steam in the postwar years. The Court also had to deal with the question of internal security and how such programs affected freedom of speech. The increasing willingness of minorities to litigate also led the Court to examine how far the doctrine of incorporation extended.

The Cold War

Although the Soviet Union had been an ally during World War II, the onset of the cold war in 1946 immediately revived all the old fears about communism (see Communism and Cold War). The exposure of spy rings, the communist takeover of eastern Europe and China, and the demand by rightist demagogues forced the Truman administration to implement a massive loyalty program (see Subversion). The attorney general issued a list of organizations suspected of communist sympathies, and at the same time Congress began a series of committee hearings that culminated in Senator Joseph McCarthy's investigations into alleged communism in the State Department and the army.

These programs all raised significant issues about freedom of speech and association. Although Justice Frankfurter personally detested McCarthyism and the whole atmosphere of the Red Scare, his philosophy of judicial restraint, which reached the height of its influence during these years, made the Court powerless to defend these basic First Amendment rights.

The government indicted twelve leaders of the Communist party of the United States under the 1940 Smith Act and charged them with conspiring to teach or advocate the forceful overthrow of the government and with belonging to an organization that advocated such an overthrow. The indictment thus departed from what had been accepted doctrine—that one could only be charged with those words or actions presenting a clear and present danger to society. A jury found the twelve guilty, and on appeal the high court upheld the convictions in Dennis v. United States (1951). Chief Justice Vinson wrote the majority opinion, which interpreted the clear and present danger test so as to allow the government to move against any doctrine it held potentially subversive. Only Black and Douglas dissented, pointing out that the convictions represented prosecutions for beliefs and thus threatened the entire notion of freedom of thought. Here again, one sees the Court caught up in the same hysteria as the general population, and utilizing the notion of judicial deference to avoid dealing with critical issues. Not until the mid‐1950s, after the waning of Senator McCarthy's power, did the Court finally begin to assert a positive view of freedom of speech.

The war against communism, this time the “police action” in Korea, also led to a major decision on separation of powers. In April 1952, to avert a strike of steelworkers, President Harry S. Truman invoked his powers as commander in chief and ordered the seizure of the nation's steel mills. The steel companies complained not that the government had no power to seize their mills, but that in this instance the wrong branch of government had acted—that only Congress, not the president, could authorize the seizure.

Although most commentators believed that a Court composed entirely of Roosevelt and Truman appointees would reject such a claim, in fact the Court invalidated the president's action by a 6‐to‐3 vote in Youngstown Sheet & Tube Co. v. Sawyer (1952). Justice Black's majority opinion flatly denied that the president had any authority, either by express provision of the Constitution or by the implied powers of commander in chief to act as he had done; he needed specific congressional authorization. The decision represented one of the few setbacks to growing executive authority that had begun in 1933 (see Presidential Emergency Powers).

Bill of Rights Cases

The Vinson Court also wrestled with the problems of civil liberties and the extent to which the Bill of Rights should apply to the states. Although Justice Cardozo had said that the entire First Amendment should be incorporated, the Court had avoided interpreting the religion clauses, and had decided the wartime Jehovah's Witness cases on speech rather than religion grounds. The Court explicitly extended the Establishment Clause to the states in *Everson v. Board of Education (1947). In a strange opinion, Justice Black depicted a high “wall of separation” that must divide church and state, and then he approved a New Jersey statute that allowed school districts to reimburse parents for transporting their children to parochial schools. Four justices dissented, not from Black's reasoning, but from the result, and elicited one of the great lines in the Court's literature, Justice Jackson's comment that “the case which irresistibly comes to mind as the most fitting precedent is that of Julia who, according to Byron's reports, ‘whispering “I will ne'er consent”—consented’ ” (p. 19). Black eventually took an absolutist position, and his later votes opposed any involvement between church and state.

The Vinson Court, however, was still feeling its way in this corner of First Amendment jurisprudence, and it sent somewhat confusing signals in two cases involving released time, in which students received religious instruction during school hours. In Illinois ex rel. McCollum v. Board of Education (1948), the Court struck down a released‐time program in which ministers came into the schools and taught religious education classes during school hours. The uproar over this decision led the Court to retreat somewhat in Zorach v. Clauson (1952). There Justice Douglas, who also later took an absolutist position on the First Amendment, noted, “We are a religious people whose institutions presuppose a Supreme Being” (p. 313). He therefore upheld a program where the students left school during regular hours to receive religious instruction off school grounds.

The Vinson Court also began to explore how far the rights accorded to accused persons under the Fourth, Fifth, and Sixth Amendments applied to the states. The right to counsel had been one of the first rights nationalized in Powell v. Alabama (1932), but ten years later the Court had refused to extend that right to noncapital cases in Betts v. Brady (1942). Rather, a majority ruled that courts should determine on a case‐by‐case basis if lack of counsel deprived the accused of a fair trial. During the Vinson years, Justice Frankfurter managed to keep a majority in favor of the Betts rule, but in nearly every case the Court found special circumstances to warrant providing the defendant with a lawyer. Not until Gideon v. Wainwright (1963) did the Court finally extend the Sixth Amendment to noncapital cases.

Justice Frankfurter also prevailed in preventing the Court from applying the exclusionary rule to the states, although in Wolf v. Colorado (1949) he did apply the Fourth Amendment protections regarding search and seizure to the states. Federal courts since 1919 had refused to admit evidence seized in violation of the Fourth Amendment, a rule designed to make sure police did not violate constitutional guidelines. Dissenters in Wolf claimed that without such a prophylactic measure, state police would not be scrupulous regarding warrant and search requirements. This prophecy proved correct, and the Court finally extended the exclusionary rule to the states in Mapp v. Ohio (1961).

Civil Rights

Undoubtedly, the most important judicial struggle to occur after the war involved African‐Americans' fight for civil rights. The promise of equality in the Reconstruction amendments, especially the Equal Protection Clause, had long been blighted. In Plessy v. Ferguson (1896), the Court had approved racial segregation and the so‐called separate but equal doctrine. The Equal Protection Clause itself had fallen into disuse, derided by Holmes as the “last resort” in a constitutional argument.

The Court had taken its first hesitant step against racial segregation in Missouri ex rel. Gaines v. Canada (1938), where Chief Justice Hughes had startled the South by declaring that if the southern states wanted to keep segregated schools, then it had to make them equal as well (see segregation, de jure). That same year Justice Stone called for heightened scrutiny of race discrimination in his Carolene Products footnote. Justice Douglas breathed life back into the Equal Protection Clause in Skinner v. Oklahoma (1942). But undoubtedly it was the experience of black soldiers in the war, as well as President Truman's desegregation of the armed services, that gave the civil rights movement an unstoppable momentum.

In 1948 two cases reached the Court dealing with restrictive covenants, which denied blacks access to housing in white neighborhoods. In Shelley v. Kraemer, the Court made these covenants unenforceable in state courts, since enforcement of racial discrimination would constitute the type of state action forbidden by the Fourteenth Amendment. In a companion case, Hurd v. Hodge, Chief Justice Vinson applied the same rule to the District of Columbia. In Sipuel v. Board of Regents of the University of Oklahoma (1948), the Supreme Court required Oklahoma to provide Ada Sipuel, whom it had denied admission to the state law school, with an equal legal education. A few years later Oklahoma again tried to get around the rules; after admitting a black man to its graduate program in education, it made him sit in the hall outside the classroom and at separate tables in the library and dining hall. For a unanimous bench, Vinson held in *McLaurin v. Oklahoma State Regents (1950) that this treatment violated the Equal Protection Clause. Although the Court had not indicated any willingness to reverse Plessy, in McLaurin and other cases it had hinted at its growing unease with the separate‐but‐equal doctrine. In Sweatt v. Painter (1950), for example, the Court recognized that a black Texas law school did not compare in quality with the University of Texas, and for the first time implied that separate might, in fact, never be equal.

In 1952 the Court granted certiorari in five cases all addressed to the issue of racial segregation in public schools. Chief Justice Vinson died before the Court decided the cases, and it fell to his successor, Earl Warren, appointed by President Dwight Eisenhower in 1953, to hand down what is arguably the Court's most important decision of the twentieth century, Brown v. Board of Education (1954). Recent research has indicated that despite earlier descriptions of the Court as seriously divided over desegregation, in fact nearly all of the justices were prepared to overrule Plessy. The problem, which Warren solved by splitting the decision from the implementation, was how to go about the task.

Brown in many ways represents a logical culmination of much that had occurred in the previous three decades. The Court under Taft and Hughes had focused primarily on economic issues but had begun to explore the problems of individual liberty in a modern society. By the time Warren came to the Court, economic issues had taken a back seat to the problems of equality. The conservatives who decided Adkins v. Children's Hospital (1923) had derided the fact‐laden brief Felix Frankfurter had submitted in defense of a minimum‐wage law as irrelevant to judicial inquiry, but the Court that decided Brown paid attention to the evidence submitted by the National Association for the Advancement of Colored People that segregation inflicted emotional harm on black schoolchildren.

Critics of the Court in the 1920s and 1930s demanded that judges be restrained and that they defer to the legislatures in determining policy. Justice Frankfurter carried this philosophy onto the Court with him, but by 1953 it had given way to the demand that courts take the lead in determining the extent to which the Constitution protected individual liberties. The legal realists, who in the 1920s had argued that judges not only reflected the attitudes of society but should consciously take those attitudes into consideration in their decision making, might well have applauded the changes that had taken place during these years (see Judicial Activism).

Bibliography

Leonard Baker , Back to Back: The Duel between FDR and the Supreme Court (1967).
Michal R. Belknap , Cold War Political Justice: The Smith Act, the Communist Party, and American Civil Liberties (1977).
Richard C. Cortner , The Supreme Court and the Second Bill of Rights (1981).
Richard Kluger , Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality (1976).
Paul L. Murphy , The Constitution in Crisis Times, 1918–1969 (1972).
William E. Nelson , The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
Melvin I. Urofsky , Division and Discord: The Supreme Court under Stone and Vinson, 1941–1953 (1997).
G. Edward White , The American Judicial Tradition, rev. ed. (1988).

Melvin I. Urofsky

Rights Consciousness

The general awareness of rights to be claimed or asserted against others, particularly the government, is what we mean by “rights consciousness.” People are certainly aware that they possess “rights” that the government and other citizens should not abridge. They may express their belief in these rights at a high level of generality and often misunderstand the content of the rights they actually have, overestimating their scope. But even if members of the public do not understand the precise content and scope of their rights, they have become more willing to seek recognition and expansion of those rights and to assert an entitlement to them.

A general sense of awareness of the direction in which the Supreme Court is heading in expanding or contracting rights may inspire greater or lesser optimism about these rights. Yet regardless of whether members of the public understand the Supreme Court's message, the lower federal courts are quite likely to hear the Court's signals encouraging them to take positions supportive of rights claims; thus the lower courts, too, play a role in the content of “rights consciousness.”

Rights consciousness may have either a general or a specific focus, such as the right against being compelled to incriminate oneself (see Self‐Incrimination). Belief in another specific right, the right to counsel, led one convicted felon, Clarence Gideon, to appeal his conviction, and that appeal was the Supreme Court's vehicle for enunciating, in Gideon v. Wainwright (1963), an indigent's right to an attorney at felony trials. A general right such as the right to privacy first articulated by the Supreme Court in the contraception case of Griswold v. Connecticut (1965) and central to consideration of the defeated nomination of Judge Robert Bork to the Supreme Court, may find applications far beyond the case in which it was originally identified. The right to privacy, for example, has played a part in cases dealing with a woman's right to choose abortion (Roe v. Wade, 1973) and consenting adults' protection against arrest and prosecution under state sodomy laws (Bowers v. Hardwick, 1986; Lawrence v.Texas, 2003; see also Homosexuality).

Another general right is the right to be treated fairly. Because so many rights are related to the procedures by which life, liberty, or property are obtained or removed, the right to due process of law is among those about which people often are conscious. Indeed, although modified by later rulings in which the justices were deferential to law enforcement agencies and particularly to prison administrators, a “due process revolution,” including rulings requiring hearings before termination of welfare benefits (Goldberg v. Kelly, 1970) and before suspending or expelling students from school for disciplinary reasons (Goss v. Lopez, 1975), led people to be more willing to challenge treatment by executive agencies and to demand more protections from abuse by bureaucrats.

Due process rights are but one cluster of rights the Supreme Court has articulated. Two others are to be found in the First Amendment: freedom of expression, including freedom of speech and the press, freedom to petition, and the corollary right to free assembly and association; and rights associated with religion, specifically the freedom to practice one's religion and the right not to have another religion imposed on one (or “established” by the government). Rights of criminal defendants constitute another major cluster, which includes pretrial rights, such as the protection against improper searches and against being forced to incriminate oneself to the police, and rights at trial, such as the right to have an attorney and the right to a speedy, public trial, with a properly selected jury (see Trial by Jury). There is also a cluster of citizenship rights, such as the right to vote and a general expectation that the government will treat one without regard to one's race, sex, religion, or national origin.

One can distinguish between rights clearly stated in the Constitution, such as freedom of speech and the press and the right to the free exercise of religion, and “new,” or derivative, rights recognized or created by the Supreme Court. Among the latter are the right of association, inferred from the First Amendment's freedom of speech guarantee, and the right of privacy, originally derived from the “penumbras” of specifically named portions of the Bill of Rights and from the Ninth Amendment (which states that nonenumerated rights may exist) but now based in the liberty protected by the Due Process Clause of the Fourteenth Amendment.

Individual versus Group Rights

Debate about some of these rights has been with us for many decades; issues of freedom of speech and religion have been prominent throughout the nation's history. Controversy about slavery brought about the Civil War, and issues of racial equality again came to the fore of the nation's agenda in the mid‐twentieth century, leading people to become conscious not only of individual rights but also far more conscious of group rights (see Race and Racism).

Concern about the rights of labor unions to organize workers had brought attention to the constitutional right of association, but until the civil rights movement of the 1950s and 1960s, people still tended to think of rights primarily in terms of the individual. Particularly after the Court's landmark rulings mandating equal treatment regardless of race in schools and public facilities, the need to consider remedies for segregation and racial discrimination (and whether those remedies could be race‐conscious) focused attention more on an individual's position as a member of a group—and thus on group rights. This shift in attention was part of a change in concern from rights as protection against the government to rights as a way of changing social relations; the emphasis on greater equality—not only on “equality before the law” or “equality of opportunity” but specifically on “equality of results”—has clearly done just that.

The extension of civil‐rights consciousness from African‐Americans to other groups—women, Latinos, the disabled, and gay men and lesbians—also increased group rights concerns. Attention to group matters was furthered by recognition of institutional racism and sexism, that is, the notion that discrimination is not only a matter of overt discriminatory acts against individuals but includes neutral‐seeming mechanisms that are discriminatory in their effects on whole categories of people. When people of a specific racial or gender grouping focused on their common attributes or background, as in the “consciousness‐raising” groups in the women's movement, it was only a short step to raise the consciousness of others both inside the grouping (for example, other women) or outside it. Similarly, if welfare recipients looked at their economic situation as resulting from structural conditions they had in common, they would be more likely to be conscious of their rights and to assert them (as was done by the Welfare Rights Organization) than to attribute their indigency to personal failure.

The Supreme Court has made it difficult to maintain this group emphasis. Particularly in recent years, the Court has reinforced an individualistic focus through adoption of a “perpetrator perspective” in which, before someone can be held liable for violating an individual's rights, that person (or entity) must be found to have intended such a violation; examples can be found in cases on employment discrimination (Washington v. Davis, 1976) and voting rights (Mobile v. Bolden, 1980). Adoption of a “victim perspective” in discrimination cases, with consideration given to the institutional or cultural disadvantages faced by all those in a discriminated‐against grouping, would not only lead more readily to adoption of race‐ or sex‐conscious remedies but would also reinforce a group‐rights consciousness.

Seeking Rights

Rights consciousness may be accompanied by action to achieve the rights thought to exist. Although appeals for legislative change and other types of political activism have been more frequently employed in recent years in the pursuit of rights, litigation has often been used in the effort to secure statements of these rights and their effective application. Because Supreme Court rulings supportive of rights provide evidence of litigation's effectiveness, they can be said to have created “litigation consciousness” as much as rights consciousness.

Trying to get the Supreme Court to pay greater heed to claims that rights should be enforced, groups have long used litigation to press their rights agendas; from time to time, those efforts have led to favorable results. The American Civil Liberties Union (ACLU) has often raised freedom of expression and church‐state issues and criminal procedure questions. The NAACP Legal Defense Fund (LDF) and other groups based on the LDF model, such as the Mexican‐American Legal Defense Fund (MALDEF), have pressed for elimination of segregation and discrimination in housing, education, jobs, and voting. The LDF also led the battle in the courts against the death penalty (see Capital Punishment), and comparable organizations in the women's movement have focused on abortion or reproductive rights. Conservatives, too, have developed such litigating entities to make their views of rights heard, and these groups have become prominent on matters like affirmative action and church‐state relations. This growth in litigation capacity and greater attention to seeking goals through litigation has enhanced the Supreme Court's ability to exercise leadership with respect to rights, because better‐developed legal arguments, expanding the boundaries of existing rights doctrine, are presented to the justices. With that ammunition and their discretion to control the Court's docket, the justices can craft the judicial opinions necessary to express support for rights.

The Supreme Court's Roles

It is difficult to determine whether the Supreme Court's rulings after 1953, when Earl Warren became chief justice, were more the cause of the growing consciousness of rights or the result of a preexisting, underlying societal rights consciousness. To say that the Court has created rights consciousness is implicitly to adopt the general view that the Warren Court led public opinion, influencing rights consciousness, and at times moving that consciousness beyond where it had been. It is important not to ignore the fact that the Warren Court also responded to demands made on it by those already concerned about rights.

One can certainly find instances where the Court, instead of following, led the way. In graduate‐education cases before Brown v. Board of Education (1954)—such as Sweatt v. Painter (1950)—the Court sent a signal to the NAACP that an outright attack on the separate but equal doctrine was in order. The Brown litigation was certainly responsive to that signal. The Warren Court's criminal procedure cases also provide examples of the Court moving farther than litigants sought—in fact, most such cases were brought to the Court not by groups pursuing broad rights agendas but by defense lawyers seeking only to reverse their clients' criminal convictions. The Mapp v. Ohio (1961) exclusionary rule case came to the Court as an obscenity case, but the Court transformed it into a vehicle to apply the exclusionary rule to the states.

When its rulings reaffirm rights previously recognized or recognize new rights, particularly those of underrepresented minorities, the Court can be said to be fulfilling one of its roles in American democracy—countering majoritarian tendencies by upholding minority rights. The Court can, however, play other, somewhat more limited roles with respect to rights. One is the role of legitimator, a role the Court played in the Civil Rights Act of 1964 (Heart of Atlanta Motel v. United States, 1964) and the Voting Rights Act of 1965 (South Carolina v. Katzenbach, 1966); in those cases it upheld Congress's actions and generally made clear that it would defer to congressional leadership in civil rights matters.

The Court has also legitimated others' efforts to gain and protect rights. For example, it invalidated southern efforts after Brown v. Board of Education to immobilize the NAACP through state requirements that the organization reveal its membership lists (*NAACP v. Alabama ex rel., 1956) and through charges of barratry leveled against the NAACP because it advised people of their constitutional rights to equal treatment (*NAACP v. Button, 1963). The Court's revival of the Reconstruction‐era civil rights statutes (as in United States v. Guest, 1966; United States v. Price, 1966; and Jones v. Alfred H. Mayer Co., 1968) also facilitated private citizens' complaints about deprivations of their rights.

One does not have to look far to find instances in which the Court's reaction to claims of rights has reflected the larger society's concerns. Given Americans' inclination, noted by Alexis de Tocqueville, to transform most social and economic and political problems into legal ones, the Court's agenda of course reflects the societal agenda. Starting in the late nineteenth century, imperatives of economic growth were translated into “liberty of contract” doctrine, that is, freedom from government regulation of business, including its relations with its employees; this helped create the core of the Court's agenda through the mid‐1930s (see Contract, Freedom of).

After World War II, a new elite consensus on the economic and social‐welfare functions of government, coupled with the desire to portray the virtues of “democracy” in its battle against communism, shifted the agenda of rights issues to matters such as free speech, although, in another reflection of elite concerns, the amount of speech allowed by the Supreme Court was far from unlimited. Brown v. Board of Education, although portrayed at the time as radical and often as an instance in which the court led public opinion, is another example of the justices lending their authority to a preexisting social movement and responding to concerns of political elites. Elites, more liberal than the general public, felt that after the World War II fight against Nazi ideology, segregated education was inappropriate and made the United States “look bad” in the postwar competition with the Soviet Union. Thus Brown was not only an effort by the Court to deal with the plight of African‐American students and to raise the nation's consciousness of racial discrimination but also a “cold war imperative.”

The Warren Court, in turning its attention to rights, adopted an increasingly liberal rights agenda including freedom of speech and the press, separation of church and state, equality for minorities, the rights of criminal defendants, and more recently, gender equality. However, after Barry Goldwater, George Wallace, and Richard Nixon attacked the Warren Court's criminal‐procedure decisions in their “law and order” presidential campaigns, the liberal rights agenda was displaced by a more conservative one, which had several components: opposition to continuing school desegregation remedies such as busing; opposition to abortion; support of the “rights of whites” and opposition to affirmative action; renewed interest in the rights of property, which could not be taken without just compensation; greater concern for the rights of those who practice religion; and, in criminal matters, increased attention to the interests of law enforcement and the victims of crime, and support for the death penalty. Rulings on this agenda by the Burger Court and then the Rehnquist Court illustrate both that newly appointed justices reflect public opinion and that the justices' response to public opinion may move the Court away from protection for rights claimed by liberals and toward deference to the majority. We see this in the Court's early‐1970s decisions limiting the rights of criminal defendants, its late‐1980s rulings responsive to complaints of disgruntled white males or white females that affirmative action programs produce “innocent” white victims of “reverse discrimination,” particularly when layoffs of whites result, and its rulings opposing the use of race as a consideration in creating new legislative districts (Shaw v. Reno, 1993).

The Court's Attention to Rights

Contemporary rights consciousness can be traced directly to the post–World War II period, but it also has an older history. This older past is rooted in a set of rights, asserted primarily by business interests in the late nineteenth century, relating to freedom from government regulation. A more immediate prelude to postwar rights consciousness can be seen in the Court's World War II battles over the rights of Jehovah's Witnesses to distribute their literature and to refuse to salute the flag and in negative reaction to the Court's upholding the relocation of Japanese‐Americans (Korematsu v. United States, 1944). The genesis of the Court's more recent attention to rights can be seen in Justice Harlan Stone's Footnote Four in the Carolene Products case (1938), indicating that the Court would look with stricter scrutiny at statutes affecting political rights and the rights of insular minorities.

After the early years of the cold war, the Warren Court not only gave greater attention to rights claims but also ultimately sustained a high proportion of those claims across a wide range of subjects. Along with the school prayer cases and the one person, one vote reapportionment cases of the early 1960s came the “revolution” in which criminal procedure was nationalized. The specific protections of the Fourth, Fifth, Sixth, and Eighth Amendments were extended to state criminal defendants and increased due process was required in dealing with criminal defendants. The Court began this “revolution” by outlawing use of improperly seized evidence in state criminal trials (Mapp v. Ohio, 1961). It continued by requiring appointed counsel for indigents at felony trials (Gideon v. Wainwright, 1963), protecting against improperly obtained confessions in the period before trial (Escobedo v. Illinois, 1964; Miranda v. Arizona, 1966), and extending the right to a jury trial to the states (Duncan v. Louisiana, 1968). The effect of a set of rulings was particularly evident in these cases: whatever the impact of these rulings might have been individually, their cumulative effect was a generally heightened rights consciousness. To be sure, Mapp by itself would have affected our collective consciousness, but the steady drumbeat of decisions over several years had a magnified effect.

The Burger Court continued to devote much of its docket to rights issues and initially supported some new claims of rights—for women (including abortion), for prisoners disciplined for violating regulations, and for mental patients, in the context of involuntary civil commitment. Contrary to expectations, the Burger Court did not directly overrule even the most criticized of the Warren Court criminal procedure rulings—Miranda and Mapp. However, the new majority did refuse to extend those rulings and undercut advances in other areas, such as rights for welfare beneficiaries.

The Burger Court's record of support for rights was nonetheless higher than the Court's record in the pre–Warren Court period. This is particularly evident if one recognizes that rights claims made to the Burger Court were more difficult than those presented earlier. General claims, such as whether the criminal procedure provisions of the Bill of Rights should be extended to the states, had been answered by the Warren Court. Succeeding rights claims, pressing well beyond liberal Warren Court rulings, were less likely to be upheld. However, because the Burger Court chose to operate within the Warren Court's precedents, the result was a more generous approach to rights than an earlier Court would have demonstrated. As time passed, however, the Rehnquist Court proved itself less willing to extend rights and more willing to limit them, although there still were surprises when rights claims were upheld. Limits on rights were particularly clear in criminal procedure, especially in death penalty cases, where the Court made it more difficult for defendants to test their convictions and death sentences through habeas corpus.

The modern Supreme Court's sustained attention to rights has made it easy to assume that the Court has always paid considerable attention to rights issues. As is clear both from history and from the current mobilization of a new conservative majority, however, it has only been in this century that the Supreme Court has given attention to civil liberties and civil rights.

The Court can signal that greater attention should be paid to rights, but it can also convey a contrary message, so situations in which the Court was especially unheedful of rights must also be taken into account. Patriotism during the early part of World War II led the Court initially to uphold a compulsory flag‐salute for schoolchildren over the claims of religious minorities (Minersville School District v. Gobitis, 1940), although it soon changed its mind (*West Virginia Board of Education v. Barnette, 1943). Concern for the success of the war effort led the court to ignore the racist motivations behind restrictions on the freedom of Japanese‐Americans on the west coast when it upheld government actions in the *Hirabayashi (curfew) and Korematsu (relocation) cases in 1943 and 1944. Concern in the 1940s and 1950s over the presence of communists in government led to a growing indifference to government employees' due process rights when their loyalty was challenged or they were thought to be security risks, and to communists' free speech rights. The Court initially upheld loyalty‐security programs for the most part, and upheld convictions for conspiring to teach the advocacy of overthrow of the government (Dennis v. United States, 1951). When, in the mid‐1950s, the Court began to criticize aspects of anticommunist efforts, congressional attacks on the Court led it to retreat. Many of these decisions were, however, eventually modified or overturned. In the late 1980s, concern about drugs likewise led to a diminished concern about search and seizure rights in criminal cases and about privacy rights in the context of employment.

The Court's Impact on Rights Consciousness

In the 1950s and early 1960s, the Court was “the only game in town” for the achievement of civil rights. The Warren Court's actions, beginning with its outlawing of segregation in public education in Brown, placed rights on the national legal and political agenda, where they have remained ever since. Brown by itself, however, was not enough to establish a broad rights consciousness. It took the Warren Court's unusually high support of rights claims in a multitude of areas to crystallize contemporary rights consciousness. Yet even if the Court had handed down no more race relations rulings, Brown would have had a great effect on minorities' consciousness of their rights. This was so because it discarded “separate but equal,” the constitutional basis for segregation created in Plessy v. Ferguson (1896), leading people to assert their rights to the desegregated education to which they felt equal opportunity entitled them. This occurred despite the Court's first calling for desegregation to proceed “with all deliberate speed” (Brown v. Board of Education II, 1955) and then disengaging itself from enforcement by deciding very few school desegregation cases until 1968, except when it intervened in cases of extreme resistance.

The Court did provide support for restaurant and library sit‐ins and related demonstrations by accepting many cases and reversing many convictions on a variety of technical grounds (see Sit‐In Demonstrations). By avoiding pronouncing major new doctrine, however, the Court did not provide much leadership on the question of access to public accommodations. Instead, Congress, responding to the sit‐ins, passed the public accommodations provision (Title II) of the 1964 Civil Rights Act—which the Court then upheld in Heart of Atlanta Motel. Likewise, after striking down the white primary (*Smith v. Allright, 1944), the Court did not directly promote the assertion of the right to vote without racial discrimination; it was Congress that responded to major events, such as the 1965 civil rights march from Selma to Montgomery, Alabama, by passing important new legislation. Here again the Court's role was largely one of legitimation, when it affirmed Congress's right to enact such legislation (South Carolina v. Katzenbach, 1966). After Congress passed the Civil Rights Act of 1964 and Voting Rights Act of 1965, the Court reentered the fray—but not as a leading actor, although it was still important when, as in Jones v. Mayer, it restored life to Reconstruction‐era civil rights laws as a weapon against discrimination in housing by private individuals.

That little immediate desegregation occurred in the deep South in response to Brown and that it did not take place until the other branches had acted, reflects the oft‐noted phenomenon of “law in action” versus “law on the books.” Although civil rights activists undertook their more direct action in part because of Court‐stimulated rights consciousness, they also took to the streets because many of them felt that litigation was taking too long to achieve rights. A widespread sense of injustice played a much larger role than specific Court rulings in stimulating effective opposition to racial discrimination. The recent retreats by a more conservative Court have led some to a different interpretation—that the Court is still contending with the legacy of slavery and is moving us back toward the pre‐Brown situation, with minorities' economic situation getting worse, not better.

Rights by Reaction

Sometimes, the supposed beneficiaries of Supreme Court rulings granting rights have been prompted to develop rights consciousness by the negative reaction of opponents to these rulings. If a Court ruling upholding a claimed right is readily complied with by those who earlier interfered with the right, the consciousness of those who had gained the right might not be stimulated as much as if those who opposed the right continue in their obstruction. Conflict is an essential dynamic of change. Part of the rights consciousness deriving from Brown may have resulted from the South's massive resistance to school desegregation. Likewise, the concerted efforts to overturn the school‐prayer rulings created greater awareness of the rights involved in those rulings than if school officials had promptly stopped prayers from being recited in class. The strenuous, even apoplectic, reaction to rulings like Mapp and Miranda by the law enforcement community—often reflected in films and the media—also served to make people, both inside and outside that community, far more aware of the rulings than if there had been a quieter, even if disgruntled, response.

Consciousness of what might be called “rights in opposition” also can result from the Court's actions. Race relations and abortion provide examples. Affirmative‐action programs, along with judicially imposed race‐conscious remedies for racial discrimination found to violate Titles VI and VII of the 1964 Civil Rights Act, led to disaffection by white males who felt entitled to positions or promotions gained by minorities or women. This disaffection, along with a more general fear of quotas, in turn led to increased consciousness of whites' “rights” to equal treatment in employment, and to “reverse discrimination” lawsuits such as *Regents of University of California v. Bakke (1978) and, as the attack on affirmative action continued, *Grutter v. Bollinger (2003). Conversely, when the Court handed down rulings in 1989 limiting its own earlier job‐discrimination rulings (Ward's Cove Packing Co. v. Atonio, 1989), there was renewed “rights consciousness” in the minority community, leading to efforts to pass additional civil rights statutes to overturn those decisions (see Civil Rights Act of 1991).

Prior to Roe v. Wade (1973), with opposition to abortion institutionalized in restrictive statutes, those opposing abortion did not need to be active. When Roe invalidated those laws, it changed the landscape of rights permanently, just as Brown did for racial equality. Roe prompted formation of the “right to life” movement by those opposed to abortion and galvanized those opposed to the Equal Rights Amendment. Each subsequent ruling striking down restrictions on abortion further stimulated anti‐abortion activity, long before “pro‐choice” elements organized effectively. When cases like Webster v. Reproductive Health Services (1989) appeared to invite the states to impose greater limits on the right to an abortion, it stimulated pro‐choice forces to direct political action to prevent such restrictions, thus illustrating that rights consciousness is formed not only by rulings sustaining rights but also by rulings that seem to withdraw them. Likewise, the Court in Grove City College v. Bell (1984), which limited the reach of federal antidiscrimination rules applying to recipients of federal funds, stimulated renewed consideration of the rights to be enforced through this mechanism and ultimately led to enactment by Congress of the Civil Rights Restoration Act. The public may well react more negatively to a threat to remove an existing right than it will to the denial of a new right (see Reversals of Court Decisions by Congress).

Rights Consciousness, Action, and Results

Rights consciousness may lead to the assertion of rights, through litigation or legislative efforts, but it does not always result in immediate action. There may be no apparent need to implement those rights. Those who became more aware of segregation in schools, and therefore of a right to an equal education, often saw school segregation as a southern problem requiring no implementation in the North. Thus, little attention was directed to more subtle forms of de facto segregation resulting from regulation or practice, to inequality of education, or to unequal spending among schools depending on the schools' racial composition. When efforts were made to implement Brown against segregated schools in the North, concern about a theoretical “right to equal education” was replaced, even among many liberal Democrats, by opposition to school desegregation or at least to those measures, such as busing, that would make it effective. The Supreme Court's requirement that intentional discrimination based on race be proved provided an essential (and “neutral”) legal tool to those resisting further desegregation (see Discriminatory Intent).

If formal pro‐civil rights actions have been only symbolic, how much change has resulted? Effectuation of rights in legislation may allow most of those not discriminated against to think that discrimination has ended. This is part of a more general problem in which legislation, whether intended as symbolic or not, is in the end only that, largely because of the faulty assumption that law will be implemented effectively by the executive branch and followed fully and without complaint. The belief that statutes or judicial decisions are self‐enforcing also helps to explain why, beyond NAACP‐initiated district‐by‐district litigation, rights consciousness stimulated by Brown did not at first result in action by its intended minority beneficiaries. When people realized that Brown was not being enforced, it became a basis for protest, indicating a possible lag between creation of rights consciousness and actions stemming from it. If a landmark ruling like Brown becomes part of our broader consciousness, the likelihood that people will work to bring it into actuality is increased. In fact, one may say that Brown probably had more of a short‐term effect in giving African‐Americans the impetus to fight for their rights, both with regard to school desegregation and other civil rights as well, than it did on elementary school desegregation itself.

Litigation and Rights

Successful litigation is widely imitated. Often it stimulates further litigation to expand those rights already won in addition to ensuring their enforcement. Seeking rights through the Supreme Court may, however, carry a limited payoff. Some rulings are not favorable to desired rights claims and may even undermine rights thought to have been won. In addition, if rights sought by differing groups are in conflict, what may be victory for one can be a defeat for another. For example, those who seek to ban pornography as endangering women, a position arising directly from consciousness of women's rights, find themselves at odds with more traditional liberals who ardently protest any limitations on freedom of expression. There is also the continuing question whether mere formal legal rights, to which most attention has been paid, can ever be dispositive: the formal equality of African‐Americans or Latinos with whites, critics say, cannot supply quality education in the ghetto and barrio, and may even distract attention from the quest for effective education and economic well‐being. A belief that formal legal victories can effectively redress social and economic inequality may actually induce acceptance and quiescence and mitigate against real reform efforts.

Focusing on rights as achievable only through the courts may hinder political mobilization to gain those rights. This is a result of what we might call the “myth of rights,” that is, the idea that there are rights that courts declare, that the courts will declare them, and that these declared rights will be easily implemented. All three components of this formulation are questionable. The criticism, by activists who took to the streets, of the NAACP's reliance on litigation can be stated this way: overreliance on the courts, with attendant enforcement difficulties, distracts from the development of necessary political (electoral or legislative) strategies and actions. Some interest groups outside the civil liberties and civil rights arenas have been careful to use a combination of legislation and litigation to achieve rights rather than relying heavily, if not solely, on litigation. They have, for example, used court cases to attract public attention to their causes and to raise funds, and they have obtained important information through litigation, information they then use to stimulate legislative activity.

An important aspect of reliance on litigation is the key role of lawyers. When litigation is felt to be the central means for achieving rights, lawyers—mostly white and male—tend to be in charge; they tend to define the problems and set the parameters. Lawyer's central role makes it difficult to raise others' consciousness about rights. When people's rights consciousness has been raised, turning to litigation to achieve those rights may put the group members or activists in the back seat. Within certain groups—for example, those seeking greater rights for the mentally ill—where consciousness of rights has been a device used to build a sense of community, tensions between group members and lawyers have been considerable; the group members wish to retain control of “their movement” and not to have it become, in their view at least, the lawyers' plaything. And if the courts are seen as unwilling to provide the rights being sought, achievement of effective action in the community is viewed as better than negative national precedents from the Supreme Court. Rights consciousness may thus lead away from the courts, and particularly away from the Supreme Court, with litigation seen as a possibly self‐defeating strategy.

The Supreme Court, particularly during the Warren era, has shown that it can stimulate greater consciousness of rights. The Court, however, can also produce rulings limiting rights. Whatever its direction, the Court may have an effect in producing rights consciousness because rulings affirming rights may stimulate pursuit of rights when negatively received, and consciousness of other rights may develop among those opposing the Court's rulings. For all this, we must be careful not to overestimate the Supreme Court's effect on rights consciousness. A number of factors limit such effects, including the way in which people view their own situations and the extent to which they assume that the Court's rulings will be routinely enforced.

Bibliography

Kristin Bumiller , The Civil Rights Society: The Social Construction of Victims (1988).
Alan David Freeman , Legitimizing Racial Discrimination Through Antidiscrimination Law: A Critical Review of Supreme Court Doctrine, Minnesota Law Review 62 (1978): 1049–1119.
Michael W. McCann , Rights at Work: Pay Equity Reform and the Politics of Legal Mobilization (1994).
Stuart A. Scheingold , The Politics of Rights: Lawyers, Public Policy, and Political Change (1974).
Stephen L. Wasby , Race Relations Litigation in an Age of Complexity (1995).

Stephen L. Wasby

Opinions, Style Of A cloistered branch of government, the Supreme Court communicates with the rest of the nation primarily through written opinions. Whether they come to us through newspaper synopses, straight from the papers of the United States Reports, or from some intermediate source, it is almost exclusively by these opinions that we know the Court. If the opinions explaining the Court's decisions make sense to us, then all is well; if they confuse or strike is as false or unjust, then our sense of the fairness of our society is weakened. The words of the Court, then, must be well chosen—its use of language skillful and clear—or else we all, to one degree or another, suffer. To preserve our faith in it, the Court must write well.

Period‐Styles

The form of Supreme Court opinions has changed greatly over the past two hundred years. There is no evident apex or nadir, but it is possible to generalize about what Karl Llewellyn called “period‐styles.” In the first half of the nineteenth century, the “grand style” was common in American courts, as exemplified by Chief Justice John Marshall and Justice Joseph Story, and on state appellate courts by John Bannister Gibson of Pennsylvania and Lemuel Shaw of Massachusetts. Judges spoke as the “mouthpieces of divinity” in polished, spartan opinions. The quality of judicial writing declined after 1850, when the “formal style,” stressing logic and precedent, emerged. Opinions became much less readable: turgid, obscure, jargonistic, repetitious, and full of string citations and careless English. At the turn of the twentieth century, Justice Oliver Wendell Holmes's brilliant writing shone brightly amid this dreary gray. Perhaps as a result of his influence, the better Supreme Court opinions in the twentieth century have become, rhetorically speaking, increasingly powerful and persuasive. But the grand style has been dead since 1900, and the formal style, although mostly moribund since the rise of legal realism, lives on in the form of newly elaborated constitutional doctrines with layered sets of “tests” and “prongs” and “standards” and “hurdles.”

This broadly conceived evolution of Supreme Court opinions is explainable partly on pragmatic grounds. In Marshall's day, the Court had more time to perfect its work product than in Chief Justice Melville Fuller's day, when dockets had become more and more crowded and judges more and more rushed. Further, the judges of 1900, according to some commentators, were not as well educated as those of 1800, and therefore less likely to have a command of the language. In the latter half of the twentieth century, the justices have been cast more in the role of editors than of authors of their opinions; increasingly, law clerks have been delegated the task of putting into words what the justices have decided and why—hence the pervasive “law‐review style” so often decried by Court observers.

From a literary perspective, the gems in the United States Reports are well hidden. That exalted set of books has been called “a great literary wasteland (Frank, 1958, p. 130). A collection of first‐rate writings might be gleaned from its nearly five hundred volumes, but it would account for less than half a percent of the whole. Likewise, from a substantive legal perspective the opinions may be said to be wanting. Few of the Court's opinions genuinely illuminate the area of law with which they deal.

Whatever its inadequacies, the Supreme Court opinion is one of the most powerful tools of law and of rhetoric in American life. The practice of issuing written opinions has added immensely to the power and prestige of the Court. Justice William Brennan spoke in 1979 of the “fundamental … interdependence of the Court and the press,” for it is through the press that the majority of Americans—probably the majority even of lawyers—learn what they know of the Court's activities. More important, though, is the role of opinion writing in coming to a just resolution of any given case. Chief Justice Charles Evans Hughes said that “there is no better precaution against judicial mistakes than the setting out accurately and adequately [of] the material facts as well as the points to be decided” (Hughes, 1928, p. 64). As anyone who has set out to write a judicial opinion well knows, the writing hones the thinking and sometimes exposes weaknesses in a tentative determination that was ill conceived. As judges often say, “Some opinions just won't write.”

Reduction to Writing

Nothing in the federal Constitution, of course, requires that opinions be reduced to writing. In fact, during the Court's first decade, most were not; during the 1790s, the Court reduced its opinions to writing in only the most important cases. Justice James Iredell's draft opinion in Chisholm v. Georgia (1793) is the earliest known manuscript and just about the only one of that decade. We do not know just how much of the early reports is the product of justices and how much is the handiwork of the unofficial reporter, Alexander James Dallas, who reported only sixty cases in the first sixteen terms after 1790.

William Cranch, the first official reporter (appointed in 1801), expressed relief at “the practice which the court had adopted of reducing their opinions to writing in all cases of difficulty or importance.” By Cranch's time, written opinions were the rule, but it was not until 1834 that an order required all opinions to be filed with the clerk.

Opinion of the Court

The justices' own great uncertainty in the early nineteenth century was not whether to reduce opinions to writing, but whether to deliver seriatim opinions. During the 1790s, the justices delivered opinions in turn, after the manner of the King's Bench, except that the justices spoke in inverse order of seniority. For example, in Ware v. Hylton, the most important case of 1796, Justice Samuel Chase delivered a long opinion and then every other justice gave his separate opinion.

This practice changed abruptly when Marshall became chief justice in 1801. Marshall instituted what we now know as the “opinion of the court,” that is, an opinion attributed to a single justice but speaking for the entire court or a majority of its members. In Marshall's day, almost all the opinions were attributed to Marshall himself, although some of these were written by his colleagues. By means of the univocal opinion, Marshall was able to increase not only his own authority as chief justice but also the Court's authority within the American polity.

President Thomas Jefferson, in well‐known correspondence, protested against judicial opinions that were “huddled up in a conclave, perhaps by a majority of one, delivered as if unanimous, and with the silent acquiescence of lazy or timid associates, by a crafty chief judge, who sophisticates the law to his mind by the turn of his own reasoning” (Letter to Thomas Ritchie, 25 Dec. 1820, in Works of Thomas Jefferson, 1905, vol. 12, pp. 177–178). Jefferson wanted a rule requiring judges to announce their opinions seriatim and thus to take their positions publicly. Although he urged his own appointee Justice William Johnson, known as the “First Dissenter,” to write separately so as to attack Marshall's dominance, Johnson did so only sporadically. Had he done so more frequently, Johnson might have weakened his influence on the Marshall Court.

From Marshall's time until the death of Chief Justice Hughes—for well over a century—the Court spoke generally in single opinions, with occasional concurrences and dissents in matters of great importance. In his thirty‐five‐year tenure on the court, Marshall dissented only nine times, less often in a long career than most of today's justices dissent in a single year. From Chief Justice Harlan Fiske Stone's time (1941–1946) to the present day, both concurring and dissenting opinions have been commonplace. Some commentators have called the modern fragmentation a return to seriatim opinions.

Scholars who follow the Court seem to agree—without dissent—that the proliferation of separate opinions is an undesirable trend. John P. Frank writes that “no single thing has more depreciated the standing of the institution since the time of Hughes than the impression that it is overtalkative” (Frank, p. 129). Other Court watchers agree that separate opinions have become excessive.

Proliferation of Dissents

At its best, a dissent in the high court is, as Chief Justice Hughes termed it, “an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed” (Hughes, p. 68). That description applies nicely to what Justice Holmes and Justice Louis D. Brandeis did in giving dignity to dissenting opinions; indeed, Holmes was known as “the Great Dissenter” and was paid the honor of having an anthology of his dissents published. But as often as not, nowadays, dissents express disagreements over matters once considered too inconsequential to merit a separate opinion, and, in Justice Lewis F. Powell's words, they are not “a model of temperate discourse.” Thus, popularizers of the Court's activities are prone to speak of personal enmities on the Court, basing their inferences on nothing more than the language used in this or that justice's separate opinion.

Whereas the rhetoric of separate opinions may have become less restrained than yesteryear merely because of the gradual change of mores, the frequency of such opinions probably reflects something deeper than a mere loss of restraint. Justice William H. Rehnquist attributed the rise of concurrences and dissents to the sharp jump in recent years in the percentage of cases in which a constitutional claim is raised and, more to the point, in which a constitutional claim is sustained. Constitutional adjudication may well invite more separate opinions than does adjudication in other areas of law.

Justice Brennan's philosophy of dissenting illustrates just how different the modern view is from Chief Justice Hughes's. In an essay entitled “In Defense of Dissents,” Brennan noted a justice's duty to dissent when in disagreement with the majority. As he wrote in the Hastings Law Journal 37 (1986), “Each justice must be an active participant, and, when necessary, must write separately to record his or her thinking. Writing, then, is not an egoistic art—it is duty. Saying, ‘listen to me, see it my way, change your mind,’ is not self‐indulgence—it is very hard work that we cannot shirk” (p. 427).

Jefferson might relish this near‐return to his ideal, but it robs the Court's opinions of the oracular quality they once had. Multiplicity of opinions may also impair the work of the Court. Frank studied the separate opinions of Justice Felix Frankfurter—the “concurringest” member of the Court during his time—and showed that they were almost never cited by anyone. Thus, the conclusion that Frankfurter “consumed a large portion of his energy and talent in essays which, for all practical purposes, might as well have been written on paper airplanes and thrown out a Supreme Court window” (Frank, p. 126).

Law Clerks and Verbosity

The crush of work at the Court is undoubtedly the single greatest influence on the style of modern opinions. Justice Harry Blackmun was perhaps being delicate when he used the future tense to forecast a “breaking point” at which “one's work becomes second‐rate” (see Workload). Opinion writing is the most time‐consuming of the justices' work. Today, justices average more than twenty‐five signed opinions apiece each year.

Traditionally, opinion writing has been viewed as that aspect of the justices' work in which law clerks are least competent to help. Yet federal judges at all levels are being transformed from writers into editors of their law clerks' work; the process is all but complete at the Supreme Court. The transformation is a recent one. Chief Justice Fred Vinson was anomalous in “writing with his hands in his pockets,” telling his clerks generally what he wanted and then criticizing drafts and suggesting revisions. In the 1990s, the anomaly would be to find a justice regularly writing his or her own opinions.

Ghostwriting does not present the problem most often raised by those unfamiliar with the practice; it does not empower inexperienced law clerks to participate in the decision making. It does, however, gravely affect the deliverances of the Court. They are longer and more diffuse, loaded with footnotes, impersonal in tone, and unimaginative in presentation. Drafted by clerks who are former law‐review editors, the opinions partake of most of the negative traits of law‐review articles. As the number of clerks almost doubled between 1969 and 1979 (to a total of thirty‐two), so these qualities associated with their work on opinions also increased.

Very likely, the clerks increase verbosity rather than productivity. In 1889, the Court produced 265 signed opinions with no help from law clerks. (Granted, this period did not mark the high point of the Court's judging or of its literary style.) In 1973, when each associate justice had three clerks and the chief justice had four, the Court produced only about 130 signed opinions, but their length vastly outstripped the length of nineteenth‐century opinions. Indeed, just in the fifty years from 1936–1986, the average opinion doubled in length. In the flurry of concern over the length of the Court's opinions, Joseph W. Little half‐mockingly suggested a constitutional amendment limiting opinions to five pages. That would be a far cry indeed from the 243 pages—50,000 words, all told—in which the Court expressed its nine separate opinions in Furman v. Georgia (1972). The effect of such editorial competition can only be to drive the reader to the opinion's summary preface and away from the text.

Not alone have law clerks been blamed for the Court's blossoming wordiness. Some commentators have cited the increasingly complex and ideologically heated issues generated by our ever‐growing administrative state and our heightened notions of personal rights. As Justice William O. Douglas once observed, “the decision‐making process is not getting any easier.” Others maintain that the issues are no more difficult than in Justice Holmes's day, that it is patronizing to suggest that they are, and that the real problems are instinctive verbosity and lack of time to hew the clerks' work down to proper size.

The modern style of judging is no doubt also responsible. It was not just Holmes's habit of standing at a drafting table that helped him achieve brevity—“Nothing conduces to brevity like the caving in of the knees,” he once said. It was also his elliptical treatment of legal issues, a treatment that most judges and scholars today would find unacceptable. In one of his most famous sententious formulations, in Buck v. Bell (1927)—“Three generations of imbeciles are enough” (p. 207)—Holmes justified a vote that he might not have been able to sustain if he had had to detail his eugenic reasoning. Judges in the latter half of the twentieth century value an explicitness and a painstaking process of working through every step of the reasoning. Holmes would have been impatient with all that.

As a result of the prevailing legal ethos, we have lost much that is subtle and suggestive, and we have gained longer opinions and bulkier volumes. But not all that bulk is justified by a modern yearning for greater specificity. Generally, it is no trick at all to do what law professors regularly do in producing their casebooks: excise large chunks of the Court's opinions to expose the factual and analytical discussions that are of true importance in deciding a given case.

The exceptions often delight readers. In the shortest opinion in recent memory, Justice John Paul Stevens—the only justice who, in the 1990s, wrote his own first drafts of opinions—dispensed with McLaughlin v. United States (1986) in five short paragraphs. The opinion harks back to the pithy style of Holmes.

Evaluating the Justices

In the history of the Supreme Court, Marshall, Holmes, and Robert H. Jackson are at the first rank of judicial stylists. Marshall's grand style, of course, is distinctly rooted in the nineteenth century: orotund, divine‐sounding, inerrantly lawgiving. Holmes and Jackson, as twentieth‐century judges, are more nearly our contemporaries. Whereas other modern judges have usually made adventurous ideas dull, Holmes and Jackson could make the very dullest case a literary adventure.

Holmes habitually used rhetorical devices such as alliteration, metaphor, and periodic sentences to emphasize his points. His antitheses are legion. For example: “If a business is unsuccessful it means that the public does not care enough for it to make it pay. If it is successful the public pays its expenses and something more” (Arizona Copper Co. v. Hammer, 1919, p. 433). The literary critic Edmund Wilson went so far as to call Holmes's style “perfect.”

Legal commentators have not been quite so kind to Holmes's style. Judge Richard A. Posner suggests that the power of Holmes's famous dissent in Lochner v. New York derives more from rhetorical devices than from close reasoning. Judge Abner Mikva says that purely Holmesian approach is now untenable, inasmuch as Holmes was “not above shaping or neglecting certain facts to preserve the force of a narrow analysis.” Professor Jan Deutsch finds Holmes's persuasive power in sketching the selective vignette, not by detailing the “murky and confusing truth of how things are, but by confirming our felt certainties about how we know they should be.”

These criticisms say as much about the critics as they do about Holmes. Holmes was no doubt conscious of his omissions: “The eternal effort of art, even the writing of legal decisions, is to omit all but the essentials.” If Holmes had written so as to remedy the vices that his critics perceive, he would have introduced many others, including prolixity. The considerable virtues in his almost laconic style may necessarily have entailed a few vices.

Nor has Jackson been without detractors. But when it came to phrasing a thought aphoristically, memorably, pungently, Jackson was without equal. Like Holmes, Jackson was masterly with antithesis: “Very many are the interests which the state may protect against the practice of an occupation, very few are those it may assume to protect against the practice of propagandizing by speech or press” (Thomas v. Collins, 1945, p. 545). His wordplay was never merely playful; it was usually telling: “We can afford no liberties with liberty itself” (United States v. Spector, 1952, p. 180). His famous example of chiasmus expressed an insight about the Court incomparably well: “We are not final because we are infallible, but we are infallible only because we are final” (Brown v. Allen, 1953, p. 540). Justice Frankfurter wrote of Jackson that his writing “mirrored the man in him” more completely than any other “who ever sat on the Supreme Court,” and that Jackson belonged to “the naturalistic school [of opinion writers]. He wrote as he talked, and he talked as he felt.”

However, talented writers on the Court have been rare. Justice Douglas was the only justice in the history of the Court who inarguably could have made his living as a professional writer on nonlegal subjects. The Court has had more justices of the ilk of Justice James Moore Wayne, whose style was criticized around 1850 as being “overloaded with words; scarcely any of his sentences convey a distinct idea; and some of them are quite beyond the pale of criticism.” That description fits much of what Justices George Shiras and Samuel Blatchford, or Chief Justice Edward D. White wrote, as well as the early opinions of Justice Harold M. Burton or the work of any number of others. In recent years, Chief Justice Warren Burger received more criticism than his colleagues for incoherent footnotes and artless opinions.

Among the highly regarded judicial writers are Holmes, Jackson, and Douglas, but also Justices Louis Brandeis, Benjamin Cardozo, Frankfurter, and Hugo Black. Brandeis, who had great rhetorical skill and brought to the bench his penchant for the “Brandeis brief,” which took tirelessly thorough account of sociological as well as case‐specific facts. Holmes is said to have remarked of Brandeis, “He believed in footnotes, and I didn't.”

Cardozo would take a page to say what Holmes could say in a sentence, and on occasion his quest for exalted eloquence made his writing vacuous. In Welch v. Helvering (1933), involving the question whether a person who paid his employers' debts could take a tax deduction, Justice Cardozo said: “Life in all its fullness must supply the answer to the riddle” (p. 115). As Dean Erwin Griswold once pointed out, these are nice words, but essentially meaningless. On the whole, Cardozo's writing as a state judge—as a common‐law judge—ranks more highly than his writing on the Supreme Court.

Frankfurter is a special case. English was his second language; his feel for words has been compared to Nabokov's. That comparison is extravagant, however, unless it merely stresses Frankfurter's fascination with ornate words, such as adumbrate, excogitate, quixotism, and sub silentio. Frankfurter often lapsed into “abstractitis”: “The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities” (Sweezy v. New Hampshire, 1957, pp. 261–262).

Both Black and Douglas had bold, no‐nonsense styles. Their broad strokes of the pen to resolve constitutional uncertainties met with scorn from law professors. Both Black and Douglas might have been called technically deficient, result‐oriented, and unscholarly, but part of the reason is that they were the only justices of their time whose opinions displayed a concern that nonlawyers might ever read the reports.

On the Court today, Antonin Scalia and Rehnquist are among the strongest writers. Their opinions delight in metaphor; they are piquant, witty, and sometimes biting. From all that one gathers, though, these qualities emerge when the justices have the time to edit and rewrite the work of their clerks. What is more usual are the tendencies that all the modern justices' opinions show: a plodding, pedantic style that unnecessarily emphasizes minor points and does not stop when the job is done.

Unfortunately, the Court's opinions rarely receive the literary scrutiny that might gradually lead to better opinions. Perhaps this failure on the part of academics, lawyers, and judges is due to the mistaken notion that the writing is merely incidental to the judging, not the greater part of its essence.

See also Briefs; Opinions, Assignment and Writing of; Reporters, Supreme Court; Reporting of Opinions.

Bibliography

John P. Frank , Marble Palace: The Supreme Court in American Life (1958).
Charles Evans Hughes , The Supreme Court of the United States (1928).
Karl Llewellyn , The Common Law Tradition: Deciding Appeals (1960).
Robert F. Nagel , Constitutional Cultures: The Mentality and Consequences of Judicial Review (1989).
Richard A. Posner , Law and Literature: A Misunderstood Relation (1988).

Bryan A. Garner

United States Supreme Court highest court of the United States, established by Article 3 of the Constitution of the United States.

Scope and Jurisdiction

Section 1 of Article 3 of the Constitution provides for vesting the judicial power of the United States in one supreme court and in such inferior courts as Congress establishes. Section 2 defines the scope of U.S. judicial power and establishes the jurisdiction of the Supreme Court. The judicial power extends to all cases arising under the Constitution, laws, and treaties of the United States; to cases concerning foreign diplomats and admiralty practice; and to diversity cases (those between citizens of different states) and cases in which the United States or a state is a party (however, the Eleventh Amendment, adopted in 1798, forbids federal cognizance of cases brought against a state by citizens of another state or by citizens of a foreign state).

The cases in which the Supreme Court has original jurisdiction—i.e., where another court need not first consider the controversy—are those in which diplomats or a state is a party; even here, it has been held, inferior courts may enjoy concomitant jurisdiction. In all other federal cases the Supreme Court exercises appellate jurisdiction, but subject to limitations and regulations made by Congress.

Procedures

The court's annual term begins in October. Five justices constitute a quorum to hear a case, and decision is rendered by majority vote. In the event of a tie, the previous judgment is affirmed. Under the Judiciary Law as amended in 1934, cases are usually brought to the court by appeal or by writ of certiorari. The appeal procedure is used when the highest state court has declared that a U.S. statute is unconstitutional or that a state statute does not violate the U.S. Constitution, laws, or treaties. If a lower federal court rules that a U.S. statute is unconstitutional, the government may prosecute an immediate appeal. Certiorari is granted at the court's discretion, with most applications refused. It may be used to review the constitutional decisions of state courts of last resort and federal decisions on any important matter, especially when the inferior courts are in disagreement.

Functions

The Supreme Court has two fundamental functions. On the one hand, it must interpret and expound all congressional enactments brought before it in proper cases; in this respect its role parallels that of the state courts of final resort in making the decisive interpretation of state law. On the other hand, the Supreme Court has power (superseding that of all other courts) to examine federal and state statutes and executive actions to determine whether they conform to the U.S. Constitution. When the court rules against the constitutionality of a statute or an executive action, its decision can be overcome only if the Constitution is amended or if the court later overrules itself or modifies its previous opinion. The decisions are not confined to the specific cases, but rather are intended to guide legislatures and executive authority; thereby they mold the development of law. Thus, in the U.S. governmental system the Supreme Court potentially wields the highest power.

The Supreme Court, however, has found many constitutional limitations on its powers, and has voluntarily adopted others so as not to interfere unduly with the other branches of government or with the states. Though there are some notable exceptions, the court has a standing policy of eschewing political disputes, i.e., issues that are considered to be policy matters of legislative or executive authorities. In 1962 the court, over protests that it was entering a "political thicket," ruled in Baker v. Carr that the legislatures of several states must correct imbalances in representation between rural and urban areas. The court rarely attempts to infringe upon the power of the President over foreign affairs. Self-imposed restraints, observed only intermittently, include consideration of a constitutional issue only if the case cannot be considered on other grounds, and the formulation of constitutional decisions in the narrowest terms.

Membership

Members of the court are appointed by the President with the advice and consent of the Senate. Like all federal judges, they retain their office indefinitely during "good behavior" (only in one instance—that of Justice Samuel Chase in 1805—were impeachment proceedings ever brought against a member of the Supreme Court).

The size of the Supreme Court is not prescribed by the Constitution; it is set by statute. The court began in 1789 with six members and was increased to seven in 1807, to nine in 1837, and to ten in 1863. In 1866 the membership was reduced to eight to prevent President Andrew Johnson from filling any vacancies. Since 1869, the court has comprised nine members.

By 2007 a total of 110 Justices, 108 men and 2 women, had sat on the bench. Five served both as associate justice and as chief justice; they were John Rutledge (appointed chief justice in 1795 but never confirmed by the Senate), Edward D. White (appointed to the court in 1894 and chief justice from 1910 to 1921), Charles Evans Hughes (an associate justice from 1910 to 1916, he served as chief justice from 1930 to 1941), Harlan F. Stone (appointed to the court in 1925 and chief justice from 1941 to 1946), and William H. Rehnquist (appointed associate justice in 1971 and chief justice from 1986 to 2005). See the table entitled Supreme Court Justices for a chronological list of all chief justices and associate justices.

History

Early Years

The history of the Supreme Court reflects the development of the U.S. economy, the alteration of political views, and the evolution of the federal structure. In its earliest years, the court had little business to transact. Much of the justices' time was consumed in appearing on the federal courts of appeal in the judicial circuits assigned to them. This obligation of circuit riding was later to interfere seriously with the performance of the court's more important business. For the most part the full bench—sitting first in New York City, then in Philadelphia, finally in Washington—was a court of last resort in admiralty cases and in cases arising out of diversity of citizenship. The court somewhat later decided (in 1842 in Swift v. Tyson ) that in diversity suits it would follow not state law but a presumed federal common law.

The Court under Marshall

The status of the Supreme Court was somewhat uncertain until the tenure (1801–35) of John Marshall , the "Great Chief Justice." Marshall, a strong Federalist, in Marbury v. Madison established the principle of judicial review, i.e., the right of all courts to refuse the enforcement of unconstitutional enactments of Congress. The same power in regard to state laws was asserted in the opinion of Martin v. Hunter's Lessee (1816), delivered by Justice Joseph Story .

In other opinions, Marshall further strengthened the Federalist position as against those who espoused states' rights . This is seen notably in McCulloch v. Maryland (1819), which, by holding the creation of the second National Bank a legitimate power of Congress, gave judicial sanction to Alexander Hamilton's broad interpretation of the Constitution and extended the powers of the federal government over matters of decisive economic importance; and in Gibbons v. Ogden (1824), which confirmed the power of Congress to regulate commerce. Also of importance was Marshall's decision in the Dartmouth College Case (1819), which protected state-granted charters from impairment by state legislatures.

The Court under Taney

Under Marshall's successor, Roger B. Taney, the court recognized to some extent the claims of state regulatory authority through police power . However, in the Dred Scott Case , Taney made what many persons considered an unwarranted limitation of federal authority in forbidding Congress to prohibit slavery in the territories. So violent was the reaction of antislavery forces to the decision that in the North the prestige of the court declined greatly. The low point in the judiciary's estate came during the Civil War when Taney's challenge of President Lincoln's power to suspend habeas corpus was ignored by the President and denounced by the Northern press (see Merryman, ex parte ).

From the Civil War to 1937

The end of the Civil War to 1937 encompasses the second great period in the history of the court. After the adoption (1868) of the Fourteenth Amendment , the character of litigation before the court was altered, and there were many cases alleging that state legislation took liberty or property without due process of law, or denied equal protection of the laws. In the late 19th cent., the flood of litigation arising from a wide variety of causes was delaying the disposition of cases up to three years. Relief was imperative, and finally, in 1891, Congress created the circuit courts of appeals to give a final hearing to most appeals and excused the justices from riding circuit (however, each justice still heads one or more circuits).

In the early 20th cent., the court appeared to be highly conservative in its views. It showed in general a rigid adherence to stare decisis (the rule that precedents are to be followed), a tendency to prevent the states from adopting laws that restricted business in its employment practices and other activities, and little disposition to restrain the states from restricting civil liberties, as in the Plessy v. Ferguson case (1896), which upheld the right of states to enforce segregationist Jim Crow legislation in many Southern states. In the Insular Cases (1901), arising out of questions concerning the status of peoples in the territories acquired as a result of the Spanish American War, the court asserted that the civil rights guaranteed by the Constitution did not automatically apply to the people of an annexed territory, i.e., the Constitution did not follow the flag.

In one notable case, Muller v. Oregon (1908), the court departed from its conservative stand to uphold a state law limiting the maximum working hours of women. The case was unique in that Louis D. Brandeis , counsel for the state, and later to become a distinguished member of the court, eschewed the traditional legal arguments and showed with overwhelming evidence from physicians, factory inspectors, and social workers that the number of hours women worked affected their health and morale. The modern concern with civil liberties began in the aftermath of World War I, as the court, led by Oliver Wendell Holmes and Brandeis, began to expand the constitutional protections to free speech.

The Roosevelt Years

A third great period of constitutional history began after President Franklin Delano Roosevelt came to office and Congress passed landmark economic legislation. Much of the economic legislation of the New Deal was attacked on various constitutional grounds, e.g., that the laws were unwarranted delegations of legislative power to the President and interfered with the exclusive power of the states over intrastate commerce. From 1935 to 1937, the court struck down such major pieces of New Deal legislation as the National Industrial Recovery Act (in the Schechter Poultry Case), the Agricultural Adjustment Act, and the Bituminous Coal Act. Some of the laws were condemned by five-to-four decisions.

Unalterably in the conservative camp were Pierce Butler , James McReynolds , George Sutherland , and Willis Van Devanter . The liberals (and supporters for the most part of New Deal legislation) were Benjamin N. Cardozo , Brandeis, and Harlan F. Stone . In the center were Chief Justice Hughes and Owen J. Roberts . Roosevelt, who had not appointed a single justice, was determined to change the composition of the court and proposed (Feb., 1937) a measure designed to displace the "nine old men" and to infuse the bench with "new blood" of his choosing.

His plan—which even his opponents conceded was probably constitutional—was to provide retirement at full pay for all members of the court over 70; if a justice refused to retire, an "assistant" with full voting rights was to be appointed. In no case might there be more than 15 justices. The majority in Congress, which characterized the scheme as "packing the court," prevented it from ever coming up for a vote, and it was abandoned in July.

In April, however, Hughes and Roberts joined the liberal group, thus giving the New Deal a precarious majority of one. By five-to-four votes the National Labor Relations Act and the Social Security Act were upheld. The majority justified these and other decisions by pointing out that the scope of federal legislation had to expand because the growing interdependence of the country made local economic legislation of little value. The court also enunciated the novel view that in acting under the "general welfare" clause of Article 1, Section 8, of the Constitution, Congress was not limited to carrying out its express powers as listed in Article 1 but might pursue a wider range of objectives. Congress was thus given a vast new range of legislative power free of Supreme Court censure.

In 1938, the court took another revolutionary step in overruling Swift v. Tyson. The doctrine of a federal common law was repudiated, and in handling diversity suits the federal courts were directed to use state law. While in this case the Supreme Court limited the scope of federal activity, it took certain steps in the opposite direction. In the conflict of laws (juristic relations between states) it announced many new principles, and it forbade even limited state taxation of federal facilities but offered Congress fairly wide scope to tax various state-supported activities.

The court of the 1940s, with seven appointments by Roosevelt, was not more unified than its Depression-era predecessor. There was less public concern, however, since the court did not invalidate major legislation, while the diverse views of its members on technical subjects—antitrust and patent law, conflict of laws, taxation—mainly concerned lawyers and business. On the contrary, the percentage of dissents and of special opinions was greater than at any previous time. A notable blot on the court's record during World War II was its decision in Korematsu v. United States (1944), which upheld the constitutionality of wartime relocation and internment of Japanese-Americans.

The 1950s and 1960s: Civil Liberties and Criminal Procedure

In the 1950s, the court found itself more and more concerned with the constitutional rights of the individual. Freedom of speech and other civil liberty issues were repeatedly brought before the court during this period of concern over internal subversion. Similarly, Congressional interrogation practices, state sedition laws, and other questionable methods used by the authorities in uncovering Communists in and out of government came under severe scrutiny near the end of the decade. The court's willingness to hold the constitutional guarantees of free speech and due process as above the alleged needs of internal security brought strong criticism from conservative jurists and led to attempts in Congress to curb the court's jurisdiction.

By the late 1950s, a fairly clear division on civil liberties had been established within the court. One wing, often called the judicial pacifists, sided with Felix Frankfurter , who argued that legislation and inquiries concerning internal security should be given the benefit of doubt despite infringements of personal liberty. The judicial activist wing, led by Justices Hugo L. Black and William O. Douglas , felt that the freedoms guaranteed by the Bill of Rights are absolute and should be considered beyond the power of Congress or the executive to modify. However, in civil-rights litigation, the court closed ranks in 1954, under Chief Justice Earl Warren, to order the desegregation of Southern public schools by a unanimous vote (see integration ; Brown v. Board of Education of Topeka, Kans. ).

In the 1960s, the court expanded the protection given individuals accused of crimes, especially in the areas of search and seizures ( Mapp v. Ohio ), confessions ( Miranda v. Arizona ), and the right to an attorney ( Gideon v. Wainwright ). In 1967, President Lyndon B. Johnson appointed the first African American, Thurgood Marshall , to the court.

In his first term in office, President Richard M. Nixon was able to significantly affect the outlook of the court by appointing a chief justice, Warren Burger , and three associate justices, Harry Blackmun , Lewis Powell , and William Rehnquist . Byron White , appointed by John F. Kennedy, often voted with the four to cut back the scope of the Warren court on criminal and other holdings. Emphasizing property rights and freedom from government interference, the court held that a private club with a state liquor license could refuse to serve guests because of their race and that a private shopping center could selectively ban political pickets.

In other areas, however, the Burger court proved surprisingly liberal. The death penalty (see capital punishment ) was declared unconstitutional in Furman v. Georgia (1972) on the grounds that it constituted cruel and unusual punishment in violation of the Eighth Amendment to the U.S. Constitution. This was later overturned in Gregg v. Georgia (1976). In Nixon v. United States (1974), a unanimous court, including three Nixon appointees, ordered President Nixon to produce tape recordings relevant to the Watergate affair , a decision that precipitated his resignation three weeks later.

The court's most controversial decision of the Burger years was the declaration of women's rights to abortion in Roe v. Wade (1973). Critics were opposed to both its results—invalidation of state statutes prohibiting abortion—and the grounds for the decision, which they believed had usurped the prerogatives of legislatures in voiding state laws and asserted an unenumerated right not laid out in the Constitution. This argument found favor in the 1980s, under the administrations of Presidents Ronald Reagan and George H. W. Bush, who were committed to overturning the 1973 decision, and had the opportunity to make five appointments to the court.

The Current Court

With the emergence of a working conservative majority, particularly under the leadership of William Rehnquist (1986–2005), many of the Warren and Burger court precedents in the areas of criminal procedure and civil liberties were scaled back. Though the court approved of restrictions on the right to abortion, it also, by a narrow majority, continued to uphold the underlying principle of Roe v. Wade. The continuing controversy over the abortion ruling and other civil liberties cases placed the court in the center of a national political debate, underscored by the bitter Senate hearings on the unsuccessful nomination of Robert Bork and the contention that surrounded the elevation of Clarence Thomas to the court. From the mid-1990s to the mid-2000s the other members of the court were John Paul Stevens , appointed by President Ford; Sandra Day O'Connor , the first female Justice, Antonin Scalia , and Anthony Kennedy , all Reagan appointees; David Souter , appointed by President George H. W. Bush (who also appointed Thomas); and Ruth Bader Ginsburg and Stephen Breyer , both Clinton appointees. At the beginning of the 21st cent., the court's center was far to the right of the center during the Warren and even the Burger years. On the other hand, Justices Souter, Ginsburg, and others were felt to have acted as a brake on conservative judicial activism. A significant subsequent set of decisions (2004, 2005) in which the justices found that only juries can make the findings of fact that affect a defendant's sentence was notable for the shifting alliances among the members that determined the outcome of the cases.

The Rehnquist court, despite its sometimes activist approach, also espoused the doctrines of judicial restraint, restrictions on federal power, and deference to the states. These positions appeared to be abandoned by the court in Dec., 2000, when, after Al Gore had sought and won a court-ordered recount from the Florida supreme court, the U.S. Supreme Court split 5–4 along ideological lines and ordered an end to the recount (because a single standard for conducting the recounts had not been established by the Florida court). Many observers felt that the court had tarnished its reputation with its decision, and some felt that it was a blatantly political ruling in favor of the Republican candidate, George W. Bush .

In 2005, with the retirement of Justice O'Connor and the death of Chief Justice Rehnquist, Bush appointed John G. Roberts , Jr., to succeed Rehnquist and Samuel A. Alito , Jr., to replace O'Connor. These appointments, especially that of Alito, who was confirmed in 2006, were generally regarded as increasing the conservatism of the Court, as shown by its upholding (2007) of a federal law banning the late-term abortion procedure abortion opponents have called "partial-birth" abortion and its decision (2007) that strongly limited the degree to which school districts could use race in order to avoid resegregation.

A notable ruling (2006) of the new Court determined that the president could not use military commissions that had not been authorized by Congress to try foreign terror suspects. The judgment appeared to undermine the Bush administration's long-standing but legally untested assertion that the president's constitutional powers to defend the United States were not subject to congressional legislation. The 5–3 decision overturned an appeals court ruling that had been decided in part by the new chief justice, who did not participate in the ruling. President Barack Obama appointed Sonia Sotomayor to the Court in 2009; regarded as a liberal, she succeeded Justice Souter and became the Court's first Hispanic-American member. In 2010 Elena Kagan was named to the Court, succeeding the retiring Justice Stevens.

Bibliography

Modern scholarly studies include Alice F. Bartee, Cases Lost, Causes Won: The Supreme Court and the Judicial Process (1983); Vincent Blasi, The Burger Court (1983); John Agresto, The Supreme Court and Constitutional Democracy (1984); D. P. Currie, The Constitution in the Supreme Court: The First Hundred Years, 1789–1888 (1985); George J. Lankevich and Howard B. Furer, ed., The Supreme Court in American Life (1986); David M. O'Brien, Storm Center: The Supreme Court in American Politics (1986); Archibald Cox, The Court and the Constitution (1987); William Rehnquist, The Supreme Court (1987); William Lasser, The Limits of Judicial Power (1988); G. Edward White, The American Judicial Tradition (rev. ed. 1988); James F. Simon, The Center Holds: The Power Struggle inside the Rehnquist Court (1995); J. Toobin, The Nine (2007); B. Solomon, FDR v. The Constitution (2009); J. Shesol, Supreme Power: Franklin Roosevelt v. the Supreme Court (2010); K. J. McMahon, Nixon's Court (2011).

SUPREME COURT

SUPREME COURT. The Supreme Court is the final judicial authority in the U.S. system of government. Designated in Article III of the U.S. Constitution to have jurisdiction over all cases "arising under" the Constitution, the Court has the power to hear cases on appeal from the Federal appellate courts and the highest courts of each state. The Constitution also provides that the Court may act as a trial court in a limited number of cases: "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." Though the Supreme Court is the final judicial authority in American government, it is not necessarily the final legal or political authority in the political system. While litigants may never appeal Supreme Court decisions to a superior court, disputes may proceed in other branches of government after a Supreme Court ruling. Congress and state legislatures may effectively alter or negate Supreme Court decisions involving statutory interpretation by amending or clarifying statutes, and may nullify constitutional decisions by amending the Constitution pursuant to Article V of the Constitution.

Several factors are important to understand the Court's role in American democracy, including: the continuing nature of the Court's relationship to Congress, the Executive Branch, and state governments; the influence of political and economic history on the Court; the intellectual underpinnings of Supreme Court decisions; and the internal dynamics of the Court as a distinct institution. Finally, the ambiguity of many key provisions of the Constitution is a source of both limits and power, for it creates the need for an authoritative voice on the Constitution's meaning and simultaneously makes such interpretations open to contestation. Created at the crossroads of law and politics, the Supreme Court's history is a history of controversy.

In addition to the possibility of legislative alteration of Supreme Court decisions, formal relationships the Constitution establishes between the Court and the other branches of the national government affects the Court's power. First, the President appoints each justice to the Court, subject to Senate confirmation. Second, Supreme Court justices, like all federal judges, serve for life, absent impeachment by the House of Representatives and removal by the Senate. Third, Congress controls the number of justices that serve on the Court at any given time. At various points in U.S. history, the Court has had as few as five justices and as many as ten. Since 1865, however, the number has held steady at nine, including one chief justice. Fourth, Congress controls the Court's operational budget, though actual compensation to the justices "shall not be diminished during [the Justices] Continuance in office." (Article III, Section 1). Fifth, the Constitution gives Congress power over much of the Court's appellate jurisdiction. These and other overlapping Constitutional functions of each branch of government have led scholars to proclaim that the three branches of government are "separate institutions, sharing powers."

Beyond constitutional overlap, the special institutional nature of the Supreme Court is important. For example, the Court lacks the power to decide cases unless the proper parties to a lawsuit bring the case to the Court. The Court also lacks the ability to implement its decisions of its own accord, having to rely upon the executive branch to carry out its will. As Alexander Hamilton wrote in Federalist 78, the Framers firmly expected that the Supreme Court, "no influence over either the sword or the purse," and would thus be "the least dangerous" branch of the three branches of government.

Marshall and the Establishment of Judicial Power

Though constrained, the Supreme Court has grown in stature and power since the time of the founding. This growth would have been nearly impossible without the deft political thinking and imaginative judicial mind of John Marshall, who served as Chief Justice from 1801–1835. The Constitution is unclear about the Court's power to declare acts of Congress unconstitutional and therefore void. Marshall resolved the matter in 1803, ruling in Marbiru v. Madison that the Court did indeed possess this power. The historical circumstances and reasoning of the case dramatically illustrate the complex nature of judicial power discussed above.

Marbury arose during the tense transfer of power from the Federalist administration of John Adams to the Democratic-Republican administration of Thomas Jefferson in the wake of the 1800 election. Just before leaving office, Adams appointed William Marbury as a justice of the peace in Washington, D.C.—one of several new judgeships created by the departing Federalist Congress trying to maintain a Federalist presence in government. After assuming office, however, Jefferson and his Secretary of State, James Madison, refused to deliver Marbury's commission to him. Seeking the judgeship, Marbury took his claim directly to the Supreme Court. Marshall confronted a conundrum: if he and the Court ordered Jefferson to give Marbury his commission, Jefferson would surely refuse to obey, making the still fledgling Court appear weak in the face of executive power. Worse, Congress could have impeached Marshall. If the Court declined to support Marbury, however, it would appear to be afraid of Jefferson. Writing for the Court, Marshall dodged having to order Jefferson to deliver the commission by holding that the Constitution did not give the Court the power to hear such cases except on appeal from a lower court. However, he went on to hold that the Judiciary Act of 1789 was unconstitutional because it gave the Court the power to hear the case in original jurisdiction. Thus, Marshall avoided a potentially crippling conflict with the President while simultaneously establishing a broad power that the Court could use in the future. It would be nearly fifty years before the Court declared another act of Congress unconstitutional in the infamous Dred Scott decision.

The issue of states' power in relation to the national government was the most important issue the Court confronted before the Civil War. The Marshall Court was instrumental in increasing the power of the national government over the states. In two controversial decisions, Fletcher v. Peck (1810) and Martin v. Hunter's Lessee (1816), the Court declared that the Constitution gave it the power to review the constitutionality of decisions of state supreme courts and the acts of state legislatures, respectively. And in McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824), the Court interpreted the "necessary and proper" and commerce clauses of Article I to give Congress broad regulatory power over the economy. The Marshall Court was also committed to protecting vested economic interests through the contracts clause of Article I (see Dartmouth College v. Woodward, 1819). Under the leadership of Chief Justice Roger B. Taney (1836–1864), the Court was somewhat more deferential to the states, giving them more room to regulate commerce on their own and to impair the obligations of contracts for public policy reasons. (Cooley v. Board of Wardens, 1851; Charles River Bridge v. Warren Bridge, 1837).

As race and sectional divide came to the fore by mid-century, the Taney Court found itself at the center of the gathering storm. In 1857, the Court made an infamous decision that made Civil War inevitable. Dred Scott v. Sandford held that African Americans did not constitute "citizens" and that the first of Henry Clay's three Great Compromises—the Missouri Compromise—was unconstitutional. The Civil War also tested the power of the president of the United States to effectively manage the country. In the Prize Cases (1863) and Ex Parte Milligan (1866), respectively, the Court found that the president could unilaterally establish a shipping blockade and seize property from "non-enemies" during a time of insurrection, but that the president could not impose martial law upon the citizens and suspend the writ of habeas corpus.

The Era of Economic Rights and Limited Government

The North's victory in the Civil War had two major consequences: the end of slavery and the unleashing of corporate development in the United States—pitting the regulatory power of governments against the interests of business and the private sector. With some exceptions, the Court showed more concern for the rights of business than with the plight of African Americans. The Reconstruction Era following the Civil War allowed the Court to interpret the recently ratified Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. In 1875, Congress passed a Civil Rights Act providing for full access to public accommodations, regardless of race. The Supreme Court, however, found that such legislation exceeded Congress' power, which only extended to "the subject of slavery and its incidences" (Civil Rights Cases, 1883). Beyond striking down legislation passed to integrate American society on the basis of race, the Court in this period also upheld legislation designed to segregate American society on the basis of race. In 1896, the Court denied a Fourteenth Amendment Equal Protection challenge to the State of Louisiana's statute mandating racial segregation on trains (Plessy v. Ferguson). Some modern-day commentators point to these Reconstruction Era Court decisions regarding race as the nadir of the intellectual rigor of the Court.

Lochner v. New York epitomizes another controversial area for constitutional scholars. In 1905, the Court invalidated a New York law that regulated the maximum hours for bakers, finding that the law violated the "right to contract." Critics have pointed out that there is no textual right to contract listed in the Constitution. The Court subsequently overturned Lochner, but the case poses a perennial constitutional problem: how can the Ninth Amendment and the idea of non-enumerated rights find legitimacy with an unelected judiciary? More simply, what nontextual rights are in the Constitution and how does anyone—including the Court—know what they are?

The Supreme Court has employed two different tacks in discovering non-enumerated rights in the Constitution. During the so-called "Lochner era," it used the due process clause of the Fourteenth Amendment. In Meyer v. Nebraska (1923) and Pierce v. Society of Sisters (1925), for example, the Court found respectively that state laws limiting the ability to teach children foreign languages and restricting the teaching of children in private schools violated due process guarantees, which encompass freedom "from bodily restraint, … to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, [and] to worship [a deity] according to the dictates of [one's] own conscience." All of these aspects of liberty are "essential to the orderly pursuit of happiness by free men" and as such are protected by the Constitution under a doctrine called substantive due process.

Whereas the Court used substantive due process to limit the reach of state regulatory power, it used a restrictive interpretation of the commerce clause to limit the regulatory power of Congress in the decades before the New Deal. These cases illuminate the interactive nature of the relationship between the branches of government discussed above. The Court ruled in Hammer v. Dagenhart (1918) and A.L.A. Schechter Poultry Corp. v. United States (1935) that Congress lacked the power to pass legislation regulating child labor, and to delegate the regulation of agriculture, coal mining, and textiles to the executive branch. Because the power of Congress was critical to the success of President Franklin Delano Roosevelt's New Deal programs, F.D.R. responded to these and other decisions with a radical proposal. The president proposed expanding the number of justices on the Court to fifteen in the hope of garnering a majority that would permit Congress to pass New Deal legislation. Though Congress did not enact the plan, two justices on the Court abruptly changed their views on the commerce clause in a series of momentous decisions, including National Labor Relations Board v. Jones& Laughlin Stell (1937, which permitted Congress to regulate private employment practices) and Steward Machine Co. v. Davis, (1937, which held that Congress may sometimes exact taxes that have the effect of regulations). These famous changes in voting patterns came to be known as the "Switch in Time that Saved Nine."

The Civil Rights/Civil Liberties Era

After the New Deal crisis was resolved and the nation emerged victorious from World War II, the Court embarked on an extraordinary expansion of civil liberties and civil rights, especially under the leadership of Chief Justice Earl Warren (1953–1968). No case was more important in this regard than Brown v. Board of Education (1954), in which the Court overruled Plessy and declared that racial segregation in public schools violates the Equal Protection clause. Though it took several years before federal courts and the executive branch began enforcing the principles of Brown in a meaningful way, the decision was the springboard for later decisions that extended equal protection rights to women, gays and lesbians, aliens, children born out of wedlock, and other minorities. In the later 1960s and 1970s, the Court authorized massive integration plans for school districts; these decisions were controversial because they embroiled the federal courts in overseeing complicated institutions, a job that critics claimed lay beyond courts' capacity.

Controversy also arose with the emergence of the second form of substantive due process, as discussed above. In Griswold v. Connecticut (1965), the Court struck down a law criminalizing the use of contraceptive devices on the basis of a "right to privacy" in the Constitution, which it discovered not in the due process clause, but rather in the emanations of the penumbras of the text of the First, Third, Fourth, Fifth, and Ninth Amendments. When it proceeded to render the controversial decision in Roe v. Wade (1973), that the right to privacy protects a woman's right to have an abortion, the Court placed the right to privacy back into the Fourteenth Amendment's due process clause. Recently, however, the Court has revived the "textual" discovery of rights in Saenz v. Roe (1999). The Court in Saenz found that one component of the non-enumerated right to travel is derived from the Privileges and Immunities Clause of the Fourteenth Amendment.

The Warren Court also accelerated the application of the Bill of Rights to the states. Originally, the Bill of Rights was intended to protect individuals only from the actions of the federal government (Barron v. Baltimore, 1833). Nevertheless, in 1925 the Court ruled that because freedom of speech is a fundamental liberty protected by the due process clause of the Fourteenth Amendment, it is enforceable against state and local governments as well (Gitlow v. New York). By the 1960s, the Court had "incorporated" other clauses of the First Amendment to apply to the states. The incorporation of the Fourth, Fifth, and Sixth Amendments coincided with the Warren Court's so-called "criminal rights revolution," which generated great controversy in the context of the increasing crime rates and cultural upheavals of the sixties. Though appointed by the Republican President Eisenhower, Warren presided over what has been characterized as the most liberal period during the Court's history. The Court's rulings in Mapp v. Ohio (1961, holding that evidence obtained in violation of the Fourth Amendment must be excluded from trial), Gideon v. Wainwright (1963, applying the Sixth Amendment's right to retain counsel for the indigent extends against the states) and Miranda v. Arizona (1966, requiring police to warn suspects of their rights in custodial interrogations) greatly expanded the rights of the criminally accused.

With Justice William Brennan leading the way, the Warren Court also dramatically liberalized the First Amendment law of free speech and press. Before the late 1950s, speech could generally be punished if it had a "tendency" to cause violence or social harm. Building on the famous dissenting free speech decisions of Justices Oliver Wendell Holmes and Louis Brandeis earlier in the century, the Warren Court provided substantially more freedom for such controversial expression as pornography, vibrant (even vicious) criticism of public officials, hate speech, and offensive speech. Concisely, modern speech doctrine protects expression unless it constitutes hardcore pornography ("obscenity"), libel, threats, or speech that is likely to trigger imminent violence. (See, for example, New York Times v. Sullivan, 1964; Brandenburg v. Ohio, 1969.)

Recent Trends: Consolidation, and the New Substantive Due Process and Federalism

After Warren left the Court, President Nixon—who had campaigned against the liberalism of the Warren era—nominated the more conservative Warren Burger in the hope of ending the reign of judicial liberalism. But under Chief Justices Burger (1969–1986) and William Rehnquist (1986 to the present), the Court has generally consolidated the liberties of the Warren Era rather than radically reversing course. Though the Court has cut back some Fourth and Fifth Amendment rights, limited the reach of affirmative action (Adarand Constructors, Inc. v. Pena, 1995) and limited the scope of desegregation of the schools and the equal protection clause (see, for example, Freeman v. Pitts, 1992; Washington v. Davis, 1976), it has also maintained the fundamental right to an abortion (Planned Parenthood of Southeastern Pennsylvania v. Casey 1992), expanded the protection of free speech (R.A.V. v. St. Paul, 1992), and reaffirmed the Miranda decision (Dickerson v. United States, 2000).

The Burger Court retreated from its effort to reinforce the states' rights provisions of the Tenth Amendment, but the Rehnquist Court has revived the doctrine of federalism under the aegis of the commerce clause. From the time of the New Deal until near the end of the twentieth century, the Court had regularly accorded an ever-increasing amount of power to Congress. The Supreme Court has upheld Congressional power under the Commerce Clause to regulate such things as wheat production for home usage and public accommodations on the basis of race. (Wickard v. Filburn, 1942; Heart of Atlanta Motel, 1964). Since 1995, however, a seismic shift has occurred in the Court's jurisprudence regarding Congressional power. The Court began what is called "the new federalism" by curtailing Congress' power to prohibit the possession of weapons near schools. (United States v. Lopez, 1995). In Printz v. United States (1997), it ruled that Congress may not force state executive officers to enforce federal gun control legislation. In United States v. Morrison (2000), the Court struck down a federal law that provided civil remedies for victims of gender motivated attacks. And in Board of Trustees v. Garrett (2001), the Court concluded that Congress did not have the authority to hold states liable for violations of the Americans with Disabilities Act.

This change in the Supreme Court jurisprudence was not entirely unforeseeable. With seven of the Justices on the Court being appointed by Republican presidents, the more curious issue is why the group of the five most conservative justices waited so long to construct the new federalism. The five justices that formed the majority in each of the cases mentioned above (Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O'Connor) had all served together since 1991, yet the lodestar of the Court's more conservative decisions and the number of times in which the conservative block voted together did not begin in earnest until 1995.

These same five justices also became crucial in Bush v. Gore (2000), the case that resolved the 2000 presidential election and is already one of the most controversial cases in the Court's history. The Court issued a stay, 5–4, mandating that the State of Florida stop counting Presidential ballots on December 9, 2000. The five justices, along with Justices Souter and Breyer in part, ruled in the per curiam opinion that such counting absent uniform statewide standards violated the Equal Protection Clause of the Fourteenth Amendment and that all counting efforts had to have been completed by December 12, 2000—the same day the Court issued the opinion and three days after the Court halted the counting of the ballots.

BIBLIOGRAPHY

Ackerman, Bruce. We the People, Volume I: Foundations. Cambridge, Mass.: Harvard University Press, 1991.

Amar, Akhil Reed. The Bill of Rights: Creation and Reconstruction. New Haven, Conn.: Yale University Press, 1998.

Bell, Derrick A. And We Are Not Saved: The Elusive Quest For Racial Justice. New York: Basic Books, 1989.

Bickel, Alexander. The Least Dangerous Branch: The Supreme Court at the Bar of Politics. 2nd ed. New Haven, Conn.: Yale University Press, 1986.

Clayton, Cornell W., and Howard Gillman, eds. Supreme Court Decision making: New Institutionalist Approaches. Chicago: University of Chicago Press, 1999.

Ely, John Hart. Democracy and Distrust: A Theory of Judicial Review. Cambridge, Mass.: Harvard University Press, 1980.

Griffin, Stephen M. American Constitutionalism: From Theory to Practice. Princeton, N.J.: Princeton University Press, 1999.

Horwitz, Morton J. The Transformation of American Law, 1780–1860: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992.

Kutler, Stanley I. Judicial Power and Reconstruction Politics. Chicago: University of Chicago Press, 1968.

McClosky, Robert G. The American Supreme Court. 3d ed. Chicago: University of Chicago Press, 2000.

Neustadt, Richard E. Presidential Power: The Politics of Leadership. New York: Wiley, 1960.

O'Brien, David M. Storm Center: The Supreme Court in American Politics. New York: Norton, 2000.

Rosenberg, Gerald N. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press, 1991.

Thayer, James B. "The Origin and Scope of the American Doctrine of Constitutional Law." Harvard Law Review 7(1893): 129.

Donald A.Downs

Martin J.Sweet

See alsoConstitution of the United States ; Judicial Review ; Judiciary ; Separation of Powers andvol. 9:Women in Industry (Brandeis Brief) .

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

Paul S. Boyer

Supreme Court, U.S.

COMPOSITION AND FUNCTION OF THE COURT

JUDICIAL REVIEW AND U.S. POLICY

THE SUPREME COURT AND CONSTITUTIONAL DIALOGUE

BIBLIOGRAPHY

Article III of the U.S. Constitution states that “[t]he judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” While the Constitution establishes a Supreme Court, it does little to describe what the Court will look like or what it will do. Nevertheless, the Supreme Court has developed over time to become a key player in the U.S. policy process.

COMPOSITION AND FUNCTION OF THE COURT

With respect to composition, the Constitution provides that the justices of the U.S. Supreme Court will be appointed by the president, with the advice and consent of the Senate, and absent some malfeasance in office (which might result in their impeachment), they enjoy life tenure. As a result, appointing Supreme Court justices provides presidents with an opportunity to leave an enduring policy legacy; William Rehnquist was appointed by Republican president Richard Nixon in 1972, yet he remained a strong conservative force on the Court until his death in 2005.

The number of members of the Supreme Court is determined by statute rather than spelled out in the Constitution. During the first century of the Court’s history, the number of justices varied from five to ten. In 1869, the number was set at nine, and it has held constant ever since.

Of the nine members, eight are associate justices and one serves as the chief justice. The position of chief justice must be filled specifically by the president. Thus, when Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated William Rehnquist—who was already serving as an associate justice—to the position of chief justice; although the Senate had confirmed Rehnquist as an associate justice in 1972, they had to confirm him as chief justice again in 1986.

People sometimes refer to the chief justice as “first among equals.” The chief justice’s vote does not count more than that of any other justice. However, regardless of his actual time served on the Court, he automatically has more seniority than any associate justice. As a result, he speaks first at conferences—meetings to discuss the merits of cases—and, if the chief justice is in the majority, he determines who will write the Court’s opinion. The position of chief justice also entails some additional administrative and ceremonial responsibilities.

With respect to function, the Constitution provides that the Supreme Court has original jurisdiction—the ability to hear the case first, before any other court—over disputes between states, disputes between states and the federal government, and cases involving foreign diplomats. In all other cases, the Supreme Court exercises appellate jurisdiction; that is, it can only review the decision of another court. Because fact-finding is generally relegated to trial courts—courts with original jurisdic-tion—the Supreme Court is generally limited to resolving disputes over the meaning and application of the law.

Among the cases over which the Supreme Court exercises appellate jurisdiction, the overwhelming majority are brought to the Court through a petition for a writ of cer-tiorari. The Court has complete discretion over whether to grant the petition and hear the case or not. Indeed, the Supreme Court grants relatively few of the petitions filed with it. During the Court’s 2002 term, 8,225 cases (including appeals, original jurisdiction cases, and extraordinary writs) were brought before the Supreme Court, yet the Court granted full review to fewer than 100.

A significant body of scholarship is devoted to determining how and why the Court chooses which cases it will hear. Empirical evidence suggests that the Court chooses to hear cases that give it the greatest opportunity to make policy: cases that present significant legal issues that will have broad impact on the legal landscape and, in particular, cases the court below decided “wrongly.” In other words, as long as the state and lower federal courts are deciding legal issues in a way that is consistent with the policy and legal preferences of the Supreme Court justices, the justices will generally let those lower court decisions stand. The Court is far more likely to accept a case to correct a perceived error on the part of the lower courts.

JUDICIAL REVIEW AND U.S. POLICY

While determining who wins and who loses legal disputes is arguably an inherently political activity, the U.S. Supreme Court plays its most active role in the American political process when it exercises judicial review. Judicial review is the power to evaluate whether state and federal government actions, both legislative and executive, comport with the Constitution and, if they do not, declare those actions void.

The U.S. Supreme Court first exercised judicial review in the 1803 case of Marbury v. Madison. In February 1801, outgoing president John Adams signed a number of judicial commissions, but his secretary of state, John Marshall, did not deliver them before the end of Adams’s term. When the new president, Thomas Jefferson, took office, his secretary of state, James Madison, refused to deliver the commissions. William Marbury, one of the individuals who did not receive his commission, brought a claim directly to the U.S. Supreme Court. Interestingly, by this point, John Marshall had taken office as the chief justice of the Supreme Court.

Marbury brought his claim directly to the Supreme Court because a provision of the Judiciary Act of 1789 gave the Supreme Court the power of original jurisdiction over such matters. When the Supreme Court finally issued its decision in 1803, Chief Justice John Marshall concluded that the Court could not compel the president to deliver the commission to Marbury because Congress could not expand the Supreme Court’s original jurisdiction beyond that described in the Constitution. The Court was unable to help Marbury, but it achieved its result by declaring an act of Congress unconstitutional and void.

The Marbury decision was relatively uncontroversial when it was issued. Chief Justice Marshall made it clear that the Court’s role in exercising judicial review was limited to making legal, rather than political, determinations. In its earliest incarnation, judicial review was considered an almost ministerial function that gave the Court relatively little policymaking prerogative. As time passed, however, the potential for policymaking through the exercise of judicial review became clear.

In the late 1920s and early 1930s, the full power of judicial review was revealed. Specifically, as Congress began to pass social legislation in response to the Progressive movement and as President Franklin Roosevelt began to implement his New Deal economic policies, the Supreme Court stood squarely in the way of elected-branch policymaking. The Court issued a number of decisions striking down social and economic legislation on the grounds that it violated constitutional notions of federalism and individual liberty.

In 1937, following a string of Supreme Court decisions striking down New Deal programs, Roosevelt proposed a plan to “pack” the Court: On the pretext of assisting an overworked and elderly Supreme Court, Roosevelt proposed creating a new seat on the Supreme Court for every justice who was seventy years old or older and who remained on the Court. The result would have been to add six new seats, and those seats would, of course, be filled by judges friendly to Roosevelt’s New Deal programs.

Within weeks of Roosevelt’s proposal, Justice Owens Roberts abandoned the Court’s anti-New Deal faction to create a narrow majority that supported the constitutionality of Roosevelt’s programs. Roberts’s apparent about-face is often referred to as the “switch in time that saved nine” because his change in position helped preserve the nine-member Supreme Court. Historical examination of the Court’s deliberations from this time period indicate that Roberts had cast his pro-New Deal votes on the cases in question weeks before Roosevelt announced his plan; in other words, the coincidence between the threat to pack the Court and Roberts’s change of position was just that—a coincidence.

Still, the Court’s ability to stall implementation of significant social and economic programs highlights the potential of judicial review as a political force. Moreover, the shift in Supreme Court policy during the 1930s emphasizes the amount of discretion that the Court has in interpreting the Constitution. Although Chief Justice Marshall described judicial review as a mechanical application of clear legal principles, the events surrounding the New Deal demonstrate the extent to which the Constitution is subject to a wide range of interpretation. Indeed, since the 1930s, there has been an increasing awareness of the political implications of Supreme Court membership, and the nomination and confirmation process has become quite politically charged.

Any lingering doubt about the political dimension of the Court’s exercise of judicial review was dispelled during the tenure of Chief Justice Earl Warren. Warren was appointed by a conservative president—Dwight Eisenhower—but his time on the Court was marked by a clear liberal agenda. Warren was particularly interested in expanding the rights of criminal defendants, and his time on the Court is marked by numerous decisions that broadly construe the individual rights the Constitution guarantees to criminal defendants.

Among the cases that make up Chief Justice Warren’s legacy are Miranda v. Arizona (1966) and Gideon v. Wainwright (1963). In Miranda, the Supreme Court held that the Fifth Amendment protection against self-incrimination requires police to inform any criminal suspect in their custody of their constitutional rights; specifically, Miranda requires the police to inform suspects in custody that they have the right to remain silent and decline to answer any questions. The Miranda decision is particularly striking because it delves into the nuts and bolts of police procedure, setting fairly “bright line” requirements for the policy to follow.

In Gideon v. Wainwright (1963), the Supreme Court ruled that the Sixth Amendment guarantee of effective assistance of counsel requires states to provide attorneys to indigent criminal defendants. In other words, the state must pay attorneys to represent criminal defendants who are too poor to hire attorneys on their own. Implementation of the Gideon decision has imposed considerable financial burdens on the states.

Both the Gideon and Miranda decisions reflect Chief Justice Warren’s personal ideological agenda. First, both decisions give higher priority to the rights of the individual than to the rights of the state; procedural and financial burdens placed on government take second chair to the rights guaranteed individuals by the Constitution. Second, both decisions reflect Warren’s belief that the U.S. Supreme Court plays a countermajoritarian role in U.S. politics. While the legislative and executive branches respond to the will of the majority, Warren (and many others) viewed the courts as providing a voice and a forum to those who are socially marginalized, such as the poor.

THE SUPREME COURT AND CONSTITUTIONAL DIALOGUE

Two politically charged issues—race and abortion—highlight both the political aspect of judicial review and the role of the Supreme Court in a broader political dialogue. In both issue areas, the Supreme Court has played a key role in setting U.S. policy. Yet in both issues, the constraints placed on the Court and the dialogue between the Court and other political actors is apparent.

In 1857, the Supreme Court issued a decision in the case of Scott v. Sandford (better known as the “Dred Scott decision”). Legally, Dred Scott was a significant statement about the importance of states’ rights. Politically, however, Dred Scott was important because the Court held, essentially, that even emancipated slaves could not be full citizens of the United States. In an already tumultuous political climate, the Dred Scott decision became a rallying point for abolitionists and contributed to the outbreak of the U.S. Civil War and, ultimately, to the enactment of the Fourteenth Amendment’s guarantee of equal protection of the laws.

In Plessy v. Ferguson (1896), the Court considered a Louisiana statute that required separation of the races on all railroads. In finding that the Louisiana statute did not violate the Fourteenth Amendment, the Court explicitly rejected Plessy’s argument that segregation marginalized African Americans and perpetuated the belief that African Americans were inferior. Yet in Brown v. Board of Education of Topeka (1954), the Court outlawed segregated schools precisely because of the social stigma associated with segregation. What changed? The political climate had changed dramatically; between 1896 and 1954, African Americans had gained considerable electoral strength. Moreover, the composition of the Court had changed. Specifically, the Brown decision was vetted by a newly appointed Chief Justice Earl Warren.

The change in jurisprudence between Plessy and Brown illustrates both the importance of the ideology of individual members of the Court and the importance of a favorable political climate for the Court’s exercise of power. The Court’s decision in Brown could be implemented only with the support of the president, who mobilized the National Guard to force southern states to integrate their public schools.

The issue of race provides further illustration of the interplay between the Court and the elected branches. The Supreme Court has struggled to articulate a clear, concise position on the issue of affirmative action, leaving states to formulate their policies through a process of trial and error. In 1978, the Court first addressed the issue of affirmative action in higher education with the case of Regents of the University of California v. Bakke. In Bakke, the Court indicated that some affirmative action programs might be constitutionally acceptable, but the University of California program was not. Over the next twenty-five years, public universities across the country attempted to develop constitutionally acceptable yet effective affirmative action policies, but the Court failed to provide clear guidance. In 2003, the Court issued two decisions on the issue of affirmative action, and universities hoped that the issue would finally be resolved. In Gratz v. Bollinger, the Court struck down the University of Michigan’s affirmative action program for undergraduate admissions; in Grutter v. Bollinger, the Court upheld the affirmative action program for the University of Michigan’s law school. Taken together, the two decisions indicate that diversity in education is a compelling government interest, that public schools can consider racial diversity in admissions decisions, but that race cannot be given any precise, explicit weight in the decision process. The decisions provide guidance, but they are far from defining exactly when and how public universities may consider race in admissions.

While the issue of race illustrates the interplay and interdependence of the courts and elected government over the course of more than a century, the issue of abortion provides a more succinct yet equally compelling illustration. In 1973, following the relaxation of numerous state anti-abortion laws, the Supreme Court issued its landmark decision in Roe v. Wade. In Roe, the Court held that the right to privacy—which is not enumerated in the Constitution but which the Court had previously inferred from a number of constitutional provisions—protected the right of a woman to obtain an abortion. In a remarkably “legislative” opinion, the Court expounded that a woman’s right to privacy completely dominated the state’s interests during the first trimester of pregnancy but the two obtained more equal footing as the pregnancy progressed.

The Roe decision ignited a firestorm of controversy. It mobilized anti-abortion activists and helped solidify a full-fledged anti-abortion movement in American politics. It prompted conservative state governments to enact increasingly restrictive anti-abortion legislation in an effort to test the boundaries of Roe and lead to the Court overturning its decision. It made the issue of abortion and the right to privacy a sort of litmus test in judicial nominations and confirmations. In the wake of Roe, the effect of the Court on politics and that of politics on the Court are stark.

SEE ALSO Brown v. Board of Education, 1954; Brown v. Board of Education, 1955; Constitution, U.S.; Dred Scott v. Sanford; Eisenhower, Dwight D.; Great Depression; Grutter Decision; Hernandez v. Texas; Jefferson, Thomas; Judicial Review; Judiciary; Law; Madison, James; Marshall, Thurgood; New Deal, The; Public Policy; Roe v. Wade; Roosevelt, Franklin D.; Separation of Powers; Warren, Earl

BIBLIOGRAPHY

Baum, Lawrence. 2004. The Supreme Court. 8th ed. Washington, DC: CQ Press.

Devins, Neal. 1992. Judicial Matters. California Law Review 80: 1027–1069.

Lazarus, Edward. 2005. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Rev. ed. New York: Penguin.

Nelson, William Edward. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University of Kansas Press.

O’Brien, David. 2005. Storm Center: The Supreme Court in American Politics. 7th ed. New York: Norton.

Rosenberg, Gerald. 1993. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.

Wendy L. Watson

U.S. Supreme Court (Rulings on Forensic Evidence)

Throughout the twentieth century, the court system wrestled with the issue of whether the testimony of forensic experts was a valid form of evidence . The essential problem was that modern science moves at a brisker pace than the judicial system. As new scientific techniques with applicability to forensics emerged, the courts often had no precedents on which to accept or reject them. Today, for example, the validity of fingerprint identification, with its axiom that the fingerprints of no two persons are alike, is largely taken for granted. But a century ago the courts were not so sure, for there was little research to buttress such a claim. At the opposite end of the twentieth century came DNA evidence, with statistical claims about the uniqueness of a person's genetic markers left behind at crime scenes in the form of blood, semen, skin cells, or hair. While justice plods, science sprints, often leaving the court system struggling to catch up as it tries to answer fundamental questions about the validity of scientific testimony and how to distinguish the claims of science from those of pseudoscience.

The United States Supreme Court has decided very few cases that directly bear on the admissibility of forensic testimony. Rather than addressing the issue of the validity of any particular branch of forensic science , the Court has limited itself to establishing ground rules for forensic testimony. Currently, it does so through the Federal Rules of Evidence , a set of broad principles used in federal trials. Most state courts have adopted these rules as well. The Federal Rules govern a number of issues pertaining to the relevance of evidence, but the key rule for forensic scientists is Rule 702, "Testimony by Experts," which applies to the testimony of any forensic scientist called to the witness stand: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training , or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case."

The Court entered the arena of forensic science in a 1923 case, Frye v. United States. Frye had been convicted of second-degree murder . His lawyer wanted to offer the testimony of a scientist who had conducted a systolic blood pressure deception test, today called a lie-detector or polygraph test, to demonstrate that his client was telling the truth. The trial court refused to admit the testimony, and the defendant appealed. In a remarkably brief and pointed decision, the Supreme Court affirmed the ruling of the lower court, famously stating: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable states is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs." In the Court's view, the systolic blood pressure deception test had "not yet gained such standing and scientific recognition."

Thus was born the so-called Frye standard, used in the years that followed by various lower courts to rule on the admissibility of such forensic tools as voiceprints, neutron activation, gunshot residue tests, bite mark comparisons, and blood grouping tests. The fundamental principle was "general acceptance in the particular field," making the scientific community itself the arbiter of whether a technique or procedure passed scientific muster. In a key case affirming the Frye standard in 1974, a U.S. Court of Appeals wrote in United States v. Addison that the standard "assures that those most qualified to assess the general validity of a scientific method will have the determinative voice." Thus, the Frye standard remained a well-settled principle for 70 years.

By the 1990s, though, the Frye standard was coming under pressure, largely because in 1975 the Federal Rules of Evidence were enacted, and nowhere did they mention the "general acceptance" test of Frye. The rules seemingly cleared the way for admitting scientific testimony based on new knowledge that had not necessarily gained general acceptance in the scientific community. Uncertainty over the question of whether the Federal Rules superceded the Frye standard had come to a head in 1993 when the Supreme Court heard the case of Daubert v. Merrell Dow Pharmaceuticals.

The case involved two children with serious birth defects. Daubert contended that the defects were caused by a Merrell Dow drug the mother had taken during pregnancy. He wanted to offer the scientific testimony of eight experts who had conducted animal studies and chemical structure analyses on the drug and concluded that it could cause birth defects. The company responded with published scientific epidemiological studies showing that the drug was not a risk factor for birth defects. The trial court, citing Frye, agreed with the company and ruled that the methods employed by the plaintiff's experts did not meet the standard of "general acceptance" under Frye. The Court of Appeals affirmed the trial court's ruling, but the U.S. Supreme Court reversed the Court of Appeals.

In its opinion, the Court undertook a detailed examination of whether the Federal Rules of Evidence superceded Frye. It concluded that Frye's 'general acceptance' is not a necessary precondition to the admissibility of scientific evidence" and that the Federal Rules "assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand." To guide the trial judge, the Court offered a flexible four-pronged test based on whether the theory or technique has been "tested"; whether it has been subjected to "peer review," usually through a peer-reviewed publication, so that the scientific community can detect flaws; what its "known or potential rate of error" is; and its "acceptability" in the relevant scientific community. Accordingly, the more stringent Daubert (pronounced "Dough-BEAR") standard replaced the earlier Frye standard. Judges, not the scientific community, were to determine reliability and relevance.

The Daubert standard came into play in a 1997 case, General Electric Co. et al. v. Joiner. After he was diagnosed with lung cancer, Joiner sued General Electric and Monsanto. He proffered expert testimony that the cancer was caused by his exposure to workplace chemicals the companies manufactured. The trial court ruled in favor of the companies' motion to exclude the testimony, saying that the testimony did not rise above "subjective belief or unsupported speculation." The Court of Appeals reversed the trial court, but the Supreme Court concluded that the trial court had acted appropriately under Daubert and that in failing to defer to the trial court's judgment that there was "too great an analytical gap between the data and the opinion" in the animal studies on which Joiner's expert testimony was based; the Court of Appeals had overstepped its boundaries. In other words, the trial court judge had exercised his proper role under the Daubert standard by acting as a "gatekeeper" for expert scientific testimony.

It remained for the Court to determine whether the Daubert standard applied just to "scientific" testimony or to any other type of technical, skill-based, or experience-based knowledge on which expert testimony is based. It did so in Kumho Tire Co., Ltd., et al. v. Carmichael et al. in 1999. Carmichael was driving a vehicle on which a tire blew out. When the vehicle overturned, one passenger died and others were injured. Carmichael sued the tire manufacturer, offering the testimony of a tire failure analyst who concluded that the tire blew out because of a manufacturing defect. Kumho moved to have the testimony excluded on the grounds that the expert's methodology failed to satisfy the requirements of Rule 702 of the Federal Rules of Evidence. The trial court granted the motion, ruling that the expert's testimony failed the four-pronged test outlined in Daubert. In reversing the trial court, the Court of Appeals ruled that the Daubert standard applied only to scientific testimony. While the Supreme Court reversed the Court of Appeals, agreeing with the trial court that the tire expert's procedures failed the Daubert standard, the Court explicitly stated that "The Daubert factors may apply to the testimony of engineers and other experts who are not scientists" and that "The Daubert 'gatekeeping' obligation applies not only to 'scientific' testimony, but to all expert testimony. Rule 702 does not distinguish between 'scientific' knowledge and 'technical' or 'other specialized' knowledge, but makes clear that any such knowledge might become the subject of expert testimony."

Since 1993, the Daubert standard, as fortified by Kumho Tire, has raised the question of whether any form of widely accepted forensic testimony can be challenged. In January 2002, for example, influential Philadelphia judge Louis H. Pollock caused consternation in the law enforcement community when he ruled that fingerprint analysis failed the Daubert standard, though in March 2002, he reversed himself. The likelihood remains that further Daubert challenges to forensic science will be mounted.

see also Expert witnesses; Federal Rules of Evidence; Frye standard.

SUPREME COURT OF THE UNITED STATES

The Supreme Court of the United States is the highest federal court. Although it was explicitly recognized in Article III of the Constitution, it was not formally established until passage of the judiciary act of 1789 (1 Stat. 73) and was not organized until 1790. Though its size and jurisdiction have changed over time, the Supreme Court has fulfilled its two main functions: acting as the final interpreter of state and federal law and establishing procedural rules for the federal courts.

Composition

The Supreme Court, sometimes called the High Court, is comprised of a chief justice and eight associate justices. Article III provides that the justices of the Court are to be appointed by the president of the United States with the advice and consent of the Senate. Once appointed, a justice may not be removed from office except by congressional impeachment. Because of this provision, many justices have remained on the bench into their eighties.

In 1789 the Court initially consisted of six members, but membership was increased to seven in 1807. In 1837 an eighth and ninth justice were added, and in 1863 the number rose to ten. Congress lowered the number to eight to prevent President andrew johnson from appointing anyone, and since 1869 the Court has consisted of nine justices.

The only modern attempt to alter the size of the Court occurred in 1937, when President franklin d. roosevelt attempted to "pack" the Court by trying to add justices more sympathetic to his political ideals. Between 1935 and 1937, the Supreme Court struck down as unconstitutional numerous pieces of Roosevelt's new deal program that attempted to regulate the national economy. Most of the conservative judges who voted against the New Deal statutes were over the age of 70. Roosevelt proposed that justices be allowed to retire at age 70 with full pay. Any judge who declined this offer would be forced to have an assistant with full voting rights. This plan was met with hostility by Democrats and Republicans and ultimately rejected as an act of political interference.

When the office of chief justice is vacant, the president may choose the new chief justice from among the associate justices but does not need to do so. Whenever the chief justice is unable to perform his or her duties or the office is vacant, the associate justice who has been on the Court the longest performs the duties. The Court can take official action with as few as six members joining in deliberation. However, extremely important cases will sometimes be postponed until all nine justices can participate.

Court Term

The Court sits in Washington, D.C., and begins its term on the first Monday in October of each year. It may also hold adjourned terms or special terms whenever required. These special calendars are reserved for emergency matters that usually occur when the Court is in recess between July and October. Between October and June 30 of the following year, the Court hears oral arguments for each case in its courtroom, confers and votes on the case, and then assigns a justice to write the majority opinion. An opinion must be released on every case by the end of the Court's term. However, if the Court cannot agree on how to resolve a case, it may hold the case over until the next term and schedule further oral arguments.

Administration of the Court

The law provides for the appointment of a clerk of the Supreme Court, a deputy clerk, a marshal, a court reporter, a librarian, judicial law clerks, secretaries to the justices, and an administrative assistant to help with court management. The law provides for the printing of Supreme Court decisions to ensure that they will be available to the public. The Court also disseminates its opinions electronically through its website. In addition, it posts its court calendar, docket, and orders on its website.

Jurisdiction

The Judiciary Act of 1789 gave the Supreme Court authority to hear certain appeals brought from the lower federal courts and the state courts. The Court was also given power to issue various kinds of orders, or writs, to enforce its decisions.

Article III of the Constitution declares that the Supreme Court shall have original jurisdiction "[i]n all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a state shall be a party…" Original juris diction is the authority to hear a case from the outset. Nevertheless, Congress has enacted legislation giving the district courts concurrent jurisdiction in cases dealing with ambassadors and foreign consul as well as in cases between the U.S. government and one or more state governments. The Supreme Court retains exclusive jurisdiction only in suits between state governments, which often involve boundary disputes. These cases arise infrequently and are usually placed before special masters who hear the evidence, make findings, and recommend a decision that is acceptable to the Court.

Article III states that the Supreme Court's appellate jurisdiction extends to all federal cases "with such Exceptions, and under such Regulations as the Congress shall make." Appellate cases coming to the Court from the lower federal courts usually come from the 13 courts of appeals, although they may come from the Court of Military Appeals or, under special circumstances, directly from the district courts. Appellate cases may also come from the state courts of last resort, usually a state's supreme court.

Until 1891 losing parties in the lower federal courts and state courts of last resort had the right to appeal their cases to the Supreme Court. The Court's docket was crowded with appeals, many of which raised routine or frivolous claims. In 1891 Congress created nine courts of appeals to correct errors in routine cases. (28

U.S.C.A. ch. 3). This reduced the Supreme Court's caseload, but parties often retained statutory rights to have their cases reviewed by the Court.

In 1925 Congress reformed, at the Court's insistence, the Supreme Court's appellate jurisdiction by restricting the categories of cases in which litigants were afforded an appeal by right to the Supreme Court. In addition, the judiciary act of 1925, 43 Stat. 936, gave the Court the power to issue writs of certiorari to review all cases, federal or state, posing "federal questions of substance." The writ of certiorari gives the Court discretionary review, allowing it to address some issues and ignore others. Because of these reforms, the courts of appeals are the final decision-making courts in 98 percent of federal cases.

In 1988 Congress passed the Act to Improve the Administration of Justice, 102 Stat. 663. This law eliminated most appeals by right to the Supreme Court, requiring the Court to hear appeals only in cases involving federal civil rights laws, legislative reapportionment, federal antitrust actions, and a few other matters. As a result of this growth in discretionary jurisdiction, the Supreme Court has the ability to set its own agenda.

A party who seeks review of a decision petitions the Court for a writ of certiorari, an ancient pleading form that grants the right for review. The justices deliberate in private on whether the issues presented by the case are significant enough to merit review. They operate under an informal rule of four, which means that certiorari will be granted if any four justices favor it. If certiorari is granted, the justices can decide the case on the papers submitted or schedule a full argument before the Court. If certiorari is denied, the matter ends there. With discretionary review, the justices have complete freedom in deciding whether to hear the case, and no one may question or appeal their decision.

The Supreme Court also has special jurisdiction to answer certified questions sent to it from a federal court of appeals or from the U.S. Claims Court. The Supreme Court can either give instructions that the lower court is bound to follow or require the court to provide the record so that the Supreme Court can decide the entire lawsuit. Certification is rarely used.

Decisions

The decisions of the Supreme Court, whether by a denial of certiorari or by an opinion issued following oral argument, are final and cannot be appealed. A Supreme Court decision based on an interpretation of the Constitution may be changed by constitutional amendment. Congress may modify a decision that is based on the interpretation of an act of Congress by passing a law that directs the Court as to congressional intent and purpose. However, Congress has no power to modify a High Court decision that is based on the Court's interpretation of the Constitution. Finally, the Court may overrule itself, although it rarely does so.

Rule Making

Congress has conferred upon the Supreme Court the power to prescribe rules of procedure that the Court and the lower federal courts must follow. The Court has promulgated rules that govern civil and criminal cases in the district courts, bankruptcy proceedings, admiralty cases, copyrights cases, and appellate proceedings.

further readings

Baum, Lawrence. 2004. The Supreme Court. 8th ed. Washington, D.C.: CQ Press.

Fried, Charles. 2004. Saying What the Law Is: The Constitution in the Supreme Court. Cambridge, Mass.: Harvard Univ. Press.

Haines, Charles Grove. 2002. The Role of the Supreme Court in American Government and Politics. Union, N.J.: Law-book Exchange.

Langran, Robert. 2003. The Supreme Court: A Concise History. New York: Peter Lang.

Rehnquist, William H. 2002. The Supreme Court. New York: Vintage Books.

U.S. Supreme Court. Available online at <www.supremecourtus.gov> (accessed October 21, 2003).

cross-references

Judicial Review.

SUPREME COURT

An appellate tribunal with high powers and broad authority within its jurisdiction.

The U.S. government and each state government has a supreme court, though some states have given their highest court a different name. A supreme court is the highest court in its jurisdiction. It decides the most important issues of constitutional and statutory law and is intended to provide legal clarity and consistency for the lower appellate and trial courts. Because it is the court of last resort, a supreme court's decisions also produce finality. In addition, a supreme court oversees the administration of the jurisdiction's judicial system.

A supreme court is established by a provision in the state or federal constitution. The legislative bodies of the jurisdiction enact statutes that create a court system and provide funding for it. A supreme court usually consists of five, seven, or nine judges, who are called justices. In the federal courts, the justices are appointed for life, whereas the states have a variety of selection methods. Typically the state governor will appoint a state supreme court justice, and then he will stand for election within two years to serve a full term, which may be from six to twelve years. A judicial election may involve a contest between the justice and another candidate, or it may be a retention election, where the voters must decide whether the judge should be retained for another term.

A supreme court consists of the justices, their administrative support staff, law clerks, and staff attorneys. As an appellate court, it is limited to reviewing trial proceedings and, if applicable, intermediate appellate court decisions. No new testimony is taken, and the arguments before the court by the parties are confined to points of substantive law and procedure. A supreme court holds public proceedings, called oral arguments, in which the attorneys for the parties are given a short amount of time to advocate their positions and answer questions from members of the court. The justices, who have been briefed on the case prior to the oral arguments, conduct a conference on the case following the oral arguments.

At this meeting the justices express their opinions and vote on the case. The chief justice typically assigns a member of the court to write the majority opinion. Once a justice circulates an opinion to the court, the other justices are free to comment, criticize, and offer suggestions on how the opinion can be improved. The author of the opinion generally tries to accommodate the other justices' ideas. However, if a fundamental difference arises during the circulation process, justices may shift sides and change the outcome of the decision. At that point, a justice in the new majority will be assigned to write the opinion. A justice is always permitted to file a dissenting opinion if she disagrees with the outcome.

Once the court releases an opinion, it is published in an official report. The decision of the court is generally final, absent special circumstances. If the court's decision is based on an interpretation of a constitutional provision, it is final unless the constitution is amended or the court reverses itself at some later time. This is rarely done. For example, the U.S. Supreme Court decision in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973), legalized abortion based on a constitutional right of privacy. Those opposed to abortion have sought to have Congress pass a constitutional amendment to overturn the decision or to convince the Court to reverse its decision, but without success.

If a supreme court's decision is based on statutory interpretation, its reading of legislative intent or purpose may be overridden by the legislature. A law can be enacted that "corrects" the court and directs it to honor specific intentions of the legislature.

Every supreme court has a procedure to limit the number of cases it hears. The U.S. Supreme Court uses a writ of certiorari, which is a legal pleading that requests the Court to hear the case. State supreme courts have similar pleadings, sometimes called petitions for review, which also allow the court discretion in choosing cases to consider. Typically cases are chosen to resolve conflicts in the lower courts or to decide new legal issues.

Apart from discretionary review, supreme courts permit direct appeal, or appeal by right, on a limited set of cases. At the state level, appeals of first-degree murder and death penalty cases are heard by supreme courts, bypassing the intermediate court of appeals. The U.S. Supreme Court hears direct appeals of cases involving federal reapportionment, disputes between states, and a few other issues.

Supreme courts also administer their judicial systems, overseeing the trial and intermediate appellate courts. In addition, supreme courts enact the rules of procedure that govern the workings of their court systems. Examples include rules of civil, criminal, and appellate procedure, as well as rules of evidence. Most state supreme courts also oversee the admission of attorneys to the bar and discipline attorneys for ethical violations.

cross-references

Court Opinion; State Courts.

Supreme Court Justices

Opinions, Assignment and Writing Of Opinions announce the decision(s) reached by the Supreme Court and explain the reasons for those results. Initially the Court prepared seriatim opinions in which each member of the Court wrote a separate opinion. The result was that the Court spoke with multiple voices, none the controlling one.

When John Marshall became chief justice in 1801, the Court began to render a single opinion that announced its decision. Although the practice was not immediate, it became standard by the end of Marshall's tenure on the Court in 1835. When the chief justice is in the majority he can assign the opinion to himself or assign the task of writing to another member of the majority. When the chief justice is not in the majority, the assignment of opinions is done by the most senior associate justice in the majority. Numerous considerations influence the choice of opinion writers.

The first consideration of the assigner may be to distribute the work of opinion preparation among all the justices evenly. With minor variations, from term to term, the distribution of opinions does reflect a fairly even amount of work. The exceptions are when a justice has not served for the entire term or has been ill. Unavailability is the most likely reason for a lack of equitable distribution.

Another factor that the assigner might consider is whether the decision is an important one or is one that will be significant in the future. In such cases, the assigner may assign himself, as Chief Justice Earl Warren did in Brown v. Board of Education (1954) and Reynolds v. Sims (1964) and Chief Justice Warren E. Burger did in U.S. v. Nixon (1974). Short of that, the assigner may select a colleague who shares the assigner's views on the subject and who will prepare an opinion that reflects those views.

An additional set of tactical calculations may enter the assigner's mind in selecting the opinion writer. The writing of any opinion usually requires some adjustment of views and wording on the part of the writer. If the majority is small, the preparation of the opinion can be crucial to holding the majority together or attracting a justice who initially voted the other way. Since votes in cases are subject to change, the opinion can be designed to get a dissenting justice to switch his or her vote and join the majority. Thus, the ideological position of the writer within the majority block becomes significant. The assigning justice may give the task of writing the opinion to a justice whose vote is not secure. Once assigned the majority opinion, the wavering justice obtains a permanent stake in seeing that position prevail and is thus less likely to switch sides and change the result.

The negotiating abilities of the opinion writer may also influence the assigner's choice, particularly if the majority is fragile and will require careful persuasion or negotiation to hold or build the majority. Cementing the majority coalition or building it by attracting a vote can be important in selecting the opinion writer.

The writing of the opinion may be done by the individual justice or by a law *clerk. When the justice is satisfied with the opinion, it is distributed to the other eight members of the Court. This means each of the other justices has the opportunity to join that opinion. Justices can withhold joining until the writer has modified the opinion slightly or drastically. When the writer has heard from all the justices who are willing to join the majority opinion, and any concurring and dissenting opinions have been prepared, the decision is ready to announce.

Particularly in controversial or complicated cases, where there is a good deal of disagreement among the justices, the preparation of the Court's majority opinion may take months. Often, those cases are announced in the last days of the Court's term, in late June or early July. When there is no more time for negotiating and the term is ending, there is pressure to complete the opinions.

Bibliography

Alexander Bickel , The Unpublished Opinions of Mr. Justice Brandeis: The Supreme Court at Work (1957).

William P. McLauchlan

COURT, SUPREME

The Supreme Court is "the highest judicial body for civil, criminal, administrative and other cases falling within the jurisdiction of courts of general jurisdiction" under Article 126 of the Russian Constitution. The courts of general jurisdiction hear all cases except: (1) lawsuits among businesses and between businesses and government agencies, which are heard by the Arbitration Court system; and (2) certain Constitutional issues, which are heard by the Constitutional Court. Beneath the Supreme Court are the highest courts of each of the eighty–nine subjects of the Russian Federation and the military courts. Beneath the courts of the subjects of the Russian Federation are a large number of district courts. Still lower in the hierarchy are Justice of the Peace Courts, which deal with relatively unimportant cases. The court structure and the relations between the courts are governed by the 1996 Constitutional Law on the Judicial System of the Russian Federation. Procedural rules are provided by the 2001 Criminal Procedure Code and the 2002 Civil Procedure Code.

The Supreme Court has separate divisions for civil cases, criminal cases, and military cases. It has a President and a Presidium consisting of several high officers of the court. It also has a plenary session in which all the judges meet together. The Judicial Department of the Supreme Court handles the administration of all the courts of general jurisdiction. Most cases are heard by the Supreme Court on appeal from or petition for review of lower court decisions. Because the court sits in separate divisions and has a large number of judges, it is able to review a very large number of lower court cases. However, a few very important cases are heard by the Court in first instance. There is a mechanism for an appeal of these decisions to a higher level of the Supreme Court itself. The plenary session of the Court also has the power to issue interpretations of the law for the guidance of the lower courts. The interpretations and many other Court decisions are published at its web site. As the result of easy availability of these interpretations and decisions, lawyers are increasingly studying and citing Supreme Court rulings.

The Supreme Court has in some cases refused to apply statute laws on the basis that they contradicted the Constitution. Gradually, however, its policy changed. When in doubt on the constitutionality of a law, the Supreme Court has typically referred the question to the Constitutional Court. However, the Supreme Court frequently hears cases concerning the conformity of administrative regulations to the Constitution and laws, and frequently invalidates such regulations. The Supreme Court of the twenty–first century is very different from the Supreme Court of the Soviet period, even though the court structure is little changed. In the Soviet period the Court was subservient to the Party authorities. The court did not control judicial administration, which was managed by the Ministry of Justice. It did cite the Constitution, but never refused to apply a law on the basis of the Constitution alone.

See also: court, high arbitration; legal systems.

bibliography

Burnham, William, and Danilenko, Gennady M. (2000). Law and Legal System of the Russian Federation, 2nd ed. Huntington, NY: Juris.

Krug, Peter. (1997). "Departure from the Centralized Model: the Russian Supreme Court and Constitutional Control of Legislation." Virginia Journal of International Law 37:725-786.

Maggs, Peter B. (1997) "The Russian Courts and the Russian Constitution." Indiana International and Comparative Law Review 8:99-117.

Peter B. Maggs

Supreme Court (USA) The highest court in the USA, established by Article 3 of the US Constitution. Its members are appointed by the President, with the advice and consent of the Senate. Early in its history, under the guidance of Chief Justice John Marshall (1801–35), it established its right to judge whether bills passed by Congress or by state legislatures conform to the provisions of the constitution, with power to declare them unconstitutional if they do not. During the early nineteenth century it also established itself as the highest Court of Appeal. The decisions of the court have played a central role in the history of the USA, not only balancing the relationships between executive and legislature, and between states and the federal government, but also contributing to the evolution of social, economic, and legal policies. The commerce clause of the constitution has enabled it powerfully to influence the economy by invalidation of any state legislation deemed likely to burden interstate commerce ‘unduly’. Moreover, its interpretation of the Fourteenth Amendment of the constitution has enabled racial discrimination steadily to be eliminated. Justices hold office ‘during good behavior’, that is, they are not forced to retire as long as they can perform their duties. In 1937 a major confrontation between F. D. Roosevelt and the court erupted, as Roosevelt sought to appoint more liberal justices to counterbalance its conservative composition of old conservative justices, and to expand the court from nine to fifteen members. He was defeated in this endeavour, though since then justices have been entitled to retire at 70.

Even though the justices are, on the whole, appointed by the President along political lines, this has not always been mirrored in the court's decisions. The main reason for this was that a commitment to legal principles, such as a commitment to state's rights or the upholding of strict constitutionalism mirrored a left-right political agenda only imperfectly. Nevertheless, after a series of new appointments by Ronald Reagan and George Bush, and under Chief Justice Rehnquist, the Supreme Court did assume a more right-wing position. In one of its most controversial actions, the Court prejudged the outcome of the 2000 Presidential elections. In Bush v. Gore (December 2000) it ruled that the Florida Supreme Court's decision to extend the time limits for the recount of votes was unconstitutional. The 5:4 decision reflected the court's political composition. It constituted a rare direct intervention in the political process, and in the electoral organization of a state. The ruling was particularly problematic as the Court had a direct interest in this issue because of the President's decisive influence on the composition of the Court. A politically sensitive judgement was due in summer 2004, when the Court was expected to rule on its juristiction over detainees in Guantanamo Bay.

http://www.supremecourtus.gov

Supreme Court. Under the constitution of the Irish Free State and the Courts of Justice Act 1924, the Supreme Court was solely a court of appeal. The High Court had sole jurisdiction on the constitutionality of legislation. The power of judicial review was limited because the 1922 constitution could be amended by ordinary legislation.

In the 1937 constitution of Ireland the powers of the Supreme Court, influenced by the American model, were greatly strengthened. It is the court of final appeal and consists of at least five judges (increased to eight in 1995), including the chief justice. It has appellate jurisdiction over decisions of the other courts and its authority in cases of challenges to laws is entrenched. In cases concerning the validity of a law with reference to the constitution, only one judgment, with no assenting or dissenting opinions, can be given. This also applies to bills referred to the Supreme Court by the president. Since the 1961 Courts Act, the Supreme Court has extended its jurisdiction to other areas, notably habeas corpus, orders for costs, and appeals against acquittals.

After 1937, judges were initially slow to use judicial review. A more assertive stance commenced with Justice George Gavan Duffy (1882–1951) of the High Court, and with Cearbhall Ó Dálaigh, a Supreme Court judge from 1953 and chief justice 1962–73. Between 1939 and 1987, the 50th anniversary of the constitution, the number of cases per decade referred to the court more than quintupled. Since the 1960s the court has delivered landmark decisions in many areas, especially personal rights, but with Ireland's accession to the European Union in 1973, the finality of the Supreme Court's decisions has been limited by the European Court of Justice and the European Court of Human Rights.

Deirdre McMahon

Supreme Court Reporter, the West Publishing Company's unofficial edition of Supreme Court decisions, began publication in 1883, printing decisions of the October 1882 term. Advance sheets are issued semimonthly, with final page‐numbering. Only the bound volume, however, offers star paging to the official reports and parallel citations to both the official reports and to Lawyers' Edition. The text of decisions is the same as in the official edition. Case summaries and headnotes are prepared by West, and the headnotes are classified by West's key‐number system. Through their assigned topics and key numbers, abstracts of the legal points in Supreme Court Reporter decisions appear in the various digests published by West. Both advance sheets and bound volumes contain the usual features of West reporters, including tables of cases, a key‐number digest, and tables of words, phrases, statutes, and rules judicially construed. In addition to advance sheets, West since 1986 has been publishing a temporary “interim edition” of the bound cumulation, in two or three physical volumes, to offset the delay in publication of the final volumes.

Morris L. Cohen

Supreme Court of the United States US court of final appeal, the highest in the nation. Its duty is to decide and interpret the constitutionality of state and federal legislation and of executive acts. Once the Supreme Court arrives at a decision, all lower courts must follow it in similar cases. Cases are decided by majority vote. Created by the Constitution of 1787, the Supreme Court consists of nine justices appointed for life by the president with the advice and consent of the Senate.

Su·preme Court • n. the highest judicial court in most U.S. states. ∎  (in full U.S. Supreme Court) the highest federal court in the U.S., consisting of nine justices and taking judicial precedence over all other courts in the nation.

United States Supreme Court see Supreme Court, United States .