Supreme Court (History)

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The only court whose existence is mandated by the Constitution is the Supreme Court. Article III states: "The 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." Besides its existence, a few attributes are constitutionally entrenched by Article III. The tenure of the judges is to be "during good behavior, " and their compensation "shall not be diminished during their continuance in office." These provisions, modeled on English law and made applicable to all federal judges, were obviously intended to assure the independence of a judiciary appointed, pursuant to Article II, by the President with the advice and consent of the senate.

Other features having a bearing on the character and independence of the Court were not addressed, presumably to be left at large or determined from time to time by Congress. Qualifications for membership on the Court were not specified; nor were the size of the Court, the period of its terms, or the level of the judges' compensation. The Court was to have both original jurisdiction and appellate jurisdiction, but the latter was subject to "such exceptions, and under such regulations, as the Congress shall make." Nothing was said concerning the relation of the Supreme Court to the courts of the states.

Thus from the outset the Court was only partially sheltered from the politics of republican government. The status of the Court was one of those creative ambiguities that have marked the Constitution as no less an organism than a mechanism, Darwinian as well as Newtonian. The position of the Court may have been in the mind of an eminent modern foreign-born mathematician who, contemplating American citizenship, regretted that he could not swear allegiance to the Constitution because "it is full of inconsistencies." In a self-governing nation, to be sure, the Court is detached but not disengaged, distant but not remote. Therein lay its potential either for popular neglect and scorn or for power and prestige.

The need for a federal judiciary, and so for an ultimate tribunal, was felt by the Framers as part of the transition from a confederation to a federal union. The articles of confederation supplied no such institution, except a supreme tribunal for prize and admiralty cases. A system of federal courts, parallel to those of the states, was one of the innovative conceptions of 1787. Their function was to serve as impartial tribunals, free of local bias, in suits between states, or controversies involving citizens of different states or a foreign country; to establish a uniform interpretation of federal laws; and to maintain the supremacy of federal law in cases where a state law conflicted with the Constitution, federal statutes, or treaties of the United States. In sum, the jurisdiction of the federal courts could rest on the nature of the parties or of the question presented. Only in cases where a state, or a foreign country or its diplomatic representative, was a party was the Supreme Court given original (nonappellate) jurisdiction.

These skeletal provisions of Article III were fleshed out by Congress in the judiciary act of 1789. That act set the number of Supreme Court Justices at five associate Justices and one chief justice, with salaries of $3,500 and $4,000, respectively. (The monetary differential remained at $500 until 1969, when it was increased to $2,500.) Three provisions of the act led to developments that proved to be of seminal importance for the prestige and power of the Supreme Court: a requirement that the Justices serve on regional circuit courts ("circuit riding"); a provision in section 13 that seemed to grant original jurisdiction to the Court to issue writs of mandamus; and a grant of power in section 25 to review the decisions of state supreme courts in cases turning on the Constitution, laws, or treaties of the United States. Each of these merits attention.

The circuit duties meant sitting with a federal district judge to form a circuit court, which heard appeals from district courts and had original jurisdiction in diversity of citizenship cases. In the early years circuit riding consumed the greater part of a Justice's time and surely his energy; travel by carriage or horseback over rough roads and stopovers at uncomfortable inns resulted in a weariness of flesh and spirit, against which the Justices complained bitterly, but which they forbore to resist. Yet these excursions into the local courthouses brought them into touch with lawyers, journalists, and townspeople, and gave a reality to the Supreme Court that its functioning in the capital city could not match. Moreover, the assignment of each Justice to a particular circuit affected significantly the appointments to the Court, for a vacancy on the Court would normally be filled by an appointment from the same circuit, and so at any time the practical range of nominees was limited and the influence of a small group of senators was proportionately great. Not until 1891, with the passage of the circuit courts of appeals act, were the Justices fully relieved of circuit-riding duties. Thereafter geography played a decreasing role in appointments. A striking instance was the widely acclaimed appointment by President herbert c. hoover in 1932 of Judge benjamin n. cardozo of New York to succeed Justice oliver wendell holmes of Massachusetts, although two New Yorkers, Chief Justice charles evans hughes and Justice harlan fiske stone, were already on the Court. A comparable instance was the appointment by President Reagan in 1981 of Judge sandra day o'connor of Arizona to succeed Justice potter stewart of Ohio even though another Arizonan, Justice william h. rehnquist, was already serving.

As circuit riding was a cardinal factor in gaining popular recognition of the Court (at considerable cost to the Justices) and in determining appointments, so did the practice furnish an early opportunity for the Court to judge the validity of an act of Congress. In the waning days of the Federalist administration, Congress passed the judiciary act of 1801, compounded of partisanship and principle, which created new judgeships and abolished circuit riding. When the Jeffersonians took office, however, they countered with the Judiciary Act of 1802, which abolished the judgeships and restored circuit riding. Chief Justice john marshall, sensing a political crisis for the Court, solicited the opinions of his brethren on the question of complying with the law or treating it as beyond the authority of Congress. The Justices had serious doubts about the law's validity, and a strong distaste for the resumption of the burden it imposed, yet a majority counseled compliance, in accord with Marshall's own inclination. But a private litigant, defeated in a circuit court in Virginia at which Marshall himself presided, appealed to the Supreme Court, arguing the unconstitutionality of the 1802 act. The Congress, fearing a judgment voiding the act, had abolished the 1802 term of the Supreme Court. When the case, stuart v. laird, was decided, in February of 1803, the Court, with Marshall not participating, surprised and gratified the Jeffersonians by upholding the act, in a brief opinion which simply declared that acquiescence by the Court in circuit duty for twelve years under the Judiciary Act of 1789 had given a practical construction of the Constitution that would not now be disturbed. That the Court would at least consider the validity of an act of Congress had been resolved just six days earlier in the landmark case of marbury v. madison (1803).

That case, establishing the power of judical review of acts of Congress, marked the second of the three germinal developments from the Judiciary Act of 1789. Section 13, which gave the Court power to issue mandamus and other writs, might have been read simply as conferring the power where the jurisdiction of the Court rested on one of the grounds specified in Article III. But the Court was not of a mind for so narrow a reading. When William Marbury of Maryland invoked the original jurisdiction of the Court to enforce a right to an office of justice of the peace pursuant to an appointment by President john adams, and sought a mandamus to compel Secretary of State james madison to deliver his commission, the Court regarded section 13 as conferring jurisdiction, and as so construed beyond the ambit of original jurisdiction defined in Article III. The suit for mandamus was therefore dismissed, again to the gratification of the Jeffersonians, but in the process the Court had declared the far more significant principle that in the decision of a case where a federal law was arguably incompatible with the Constitution, the Court, in deciding what "the law" was, must, if necessary, vindicate the higher law and treat the legislative act as ineffectual.

Despite some provocative language in Marshall's opinion (the executive branch cannot "sport away" the rights of others), the Jeffersonians focused on the immediate result and regarded it as a victory at the hands of a still-Federalist Court. Indeed, judicial review was not then the divisive party issue; the Jeffersonians would have welcomed a Supreme Court decision holding the Sedition Act of 1798 unconstitutional. Whether Marshall's doctrine of judicial review was a usurpation later became a subject of heated debate, scholarly and unscholarly. Although the Constitution contains no specific mention of the power, and although Marshall's opinion, resting on the logic of the decisional process, can be said to beg the question of who is to decide, the debates in the constitutional convention do indicate obliquely an acceptance of the power, in explaining the rejection of attempts to involve judges in an extrajudicial power of veto of legislation. But the debates were not cited in Marbury;madison ' s notes, the most authoritative source, pursuant to the policy of secrecy, were not published until fifty years after the Convention.

The third of the salient projections from the Judiciary Act of 1789, involving section 25, produced more immediate partisan repercussions. Section 25 empowered the Court to review decisions of state courts that denied rights claimed under the federal Constitution, statutes, or treaties. Again, no constitutional provision explicitly conferred such power on the Supreme Court, although Article VI does declare the supremacy of federal law: "the judges in every state shall be bound thereby." By their silence, the Framers may have sought to avoid confrontations in the ratifying process, as in forbearing to be explicit about a national power to issue paper money or to establish a national bank.

The storm over the Court's power to review state court decisions was precipitated by its decision in martin v. hunter ' s lessee (1816) sustaining the validity of section 25. The case was a contest over title to the extensive Fairfax estate in the northern neck of Virginia, turning on the intricate interrelations of Virginia land law and treaties of the United States with Great Britain concerning ownership of land by British nationals. Holding that the Virginia court had misapplied both Virginia and federal law, the Supreme Court in 1813, through Justice joseph story, reversed the state court's judgment and remanded the case to that court. A number of factors weakened the force of the decision. Story's opinion controverted the state court's even on points of the interpretation of state law, although section 25 itself limited review to federal questions. At a time when seven Justices constituted the Court, only four participated in the decision; the vote was 3–1, and the mandate to the Virginia court was unfortunately in the traditional form addressed to an inferior court, "you are hereby commanded, etc." The Virginia court was outraged and refused to obey the mandate. On a new writ of error to the Supreme Court, Story elaborated the justification of Supreme Court review in terms of the need for uniformity and supremacy of national law. The nature of the cause, not the court, was determinative of the Supreme Court's power to review (though critics wondered, no doubt unfairly, if the Supreme Court could then be given authority to review certain decisions of the House of Lords). John Marshall could not have uttered a pronouncement more nationalistic than that of the New England Republican appointed by President james madison. (Marshall had excused himself because of his family's ownership of part of the land. Story, appointed in 1811 at the age of thirty-two, one of the most learned and powerful of Justices and a firm ally of Marshall, had been Madison's fourth choice to succeed william cushing of Massachusetts: levi lincoln declined the nomination, Alexander Wolcott was rejected by the Senate, and john quincy adams also declined. Thus are the inevitabilities of history determined.)

In a sequel to the decision, the Court took the further step of sustaining its power to review even criminal judgments of state courts where a federal question, such as the interpretation of a federal law, was implicated. The opinion by Chief Justice Marshall in cohens v. virginia (1821) was the climactic realization of the Court's vision of a uniform federal law and a Constitution that was supreme in reality as well as in principle.

Reaction to the Cohens decision by Jeffersonians, particularly in Virginia, was intense. Judge spencer roane, who instead of Marshall would probably have become Chief Justice if oliver ellsworth had not resigned before Jefferson took office, published a series of bitter letters under pseudonyms, paying his respects to "A most monstrous and unexampled decision. It can only be accounted for from that love of power which all history informs us infects and corrupts all who possess it, and from which even the upright and eminent Judges are not exempt." The Court's "extravagant pretension" reached "the zenith of despotic power." In the following years a series of bills were introduced in Congress to repeal, in whole or in part, the appellate jurisdiction of the Supreme Court. Under these genial auspices was thus established a particularly sensitive and probably the most crucial power of the highest court in our federal union: the review of decisions of state courts in the interest of vindicating rights secured by the Constitution.

Conflicts between the Supreme Court, on the one hand, and the executive or legislative branches, or both, on the other, have occurred continually. The other branches have utilized the full spectrum of measures made available by the constitution. The most drastic of these, impeachment, was the first to be tried; indeed it was designed as a trial run by Jefferson to prepare the way for a similar attack on Chief Justice Marshall. The immediate target was Justice samuel chase, ardent Federalist, whose partisan outbursts in charges to the grand jury in Maryland furnished the occasion. The attempt misfired, however; Chase was narrowly acquitted in the Senate, owing probably to comparable overreaching by the fiery john randolph, who managed the case for the Jeffersonians.

A milder form of resistance to the Court was the doctrine of departmental independence, whereby the President was as free to act on his view of constitutional authority as the Court was to act on its own. Despite the prospect of endless oscillation that this theory implied, it was espoused in some form by Jefferson, andrew jackson, and abraham lincoln. President jackson ' svetoofthe bank bill (1832) was based partly on grounds of unconstitutionality, although the earlier law creating the bank had been sustained by the Supreme Court. In his message justifying the veto, Jackson had the advice and aid of his attorney general, roger b. taney. By an irony of history, when President Lincoln in his first inaugural address dealt with Taney's opinion in dred scott v. sandford (1857), he adopted something of the Jackson-Taney philosophy, maintaining that although he offered no resistance to the decision as a settlement of the lawsuit he could not regard it as binding on the political branches for the future.

The indeterminate size of the Court became a weapon in the contest between President andrew johnson and Congress over reconstruction. By successive statutory changes, following the admission of new states and the creation of new circuits, the authorized membership of the Court had been increased to ten. A radical Congress, distrustful of Johnson and wishing to deprive him of the power to make new appointments to the Court, reduced the number of seats prospectively to seven. (Contributing to the move was a plan of Chief Justice salmon p. chase to induce a reluctant Congress to increase the Justices' salaries in return for a decrease in the number to be compensated. That plan failed, but Chase did succeed in having the title of his office changed from Chief Justice of the Supreme Court to Chief Justice of the United States.) The actual number of Justices did not fall below eight, and in 1869 the number was fixed at nine.

More famous is the action of the same Congress in withdrawing the appellate jurisdiction of the Supreme Court in cases under a habeas corpus act, giving rise to the decision in ex parte mccardle in 1869. While the immediate issue in the case was whether a military commission in Mississippi could try a newspaper editor for inflammatory writings urging citizens not to cooperate with the military government, Congress was fearful that a politically minded majority on the Court would hold the entire plan of Reconstruction unconstitutional. The Court, which had already heard argument in the case, bowed to the withdrawal of jurisdiction, but carefully pointed out that another appellate route remained unaffected by the repealing statute. Consequently the value of McCardle as a precedent, which is the centerpiece of constitutional argument on the extent of congressional power to limit the Court's jurisdiction, is at best doubtful.

The post-Reconstruction Court alienated labor and progressives by decisions taking a narrow view of state power to regulate and tax business; the commerce clause and freedom of contract protected by substantive due process served as shields for industry. The Progressive party platform in 1912, under the aegis of theodore roosevelt, advocated the recall of judges and judicial decisions by popular vote. Although this thrust was aimed at state courts rather than the Supreme Court, the latter had set a tone for judicial review in a triad of decisions in 1895. united states v. e. c. knight co. held that a combination of sugar refiners controlling ninety percent of sugar production in the nation was not subject to the sherman anti-trust act because processing is not commerce. in re debs held that a labor leader could be imprisoned for violating a federal court's injunction in a railroad labor strike, without judicial reliance on any statutorily defined offense. pollock v. farmers loan and trust co. held the federal income tax law unconstitutional as applied to income from real property, stocks, and bonds, though valid as applied to wages, because an income tax is tantamount to a tax on its source, and where the source is property in some form the tax is a direct tax which under the constitution is forbidden to Congress unless apportioned according to population.

The most serious conflict with the Court, certainly since Marshall's time, culminated in President franklin d. roosevelt's Court reorganization plan in early 1937. The Court had held unconstitutional a series of major new deal measures designed for economic recovery and reform: the national industrial recovery act; agricultural adjustment act; Railway Pension Act; Farm Mortgage Act; Guffey-Snyder Bituminous Coal Act; Municipal Bankruptcy Act; and a state minimum wage law for women. Still to be decided was the validity of the wagner national labor relations act, the social security act, the public utility holding company act, and the tennessee valley authority act in its full scope. The administration was persuaded that the barrier did not inhere in the Constitution but was the handiwork of Justices who were out of sympathy both with the New Deal and with the best traditions of constitutional decision. Apparently accepting the validity of this analysis, Chief Justice Hughes, appointed by President Hoover, though he greatly disliked 5–4 decisions, nevertheless joined Justices louis d. brandeis, Stone, and Cardozo as dissenters in the last five of the cases listed above as holding measures invalid. During his first term President Roosevelt had no opportunity to make an appointment to the Court.

The reorganization plan, which was formulated by Attorney General homer s. cummings, called for the appointment of an additional member of the Court for each Justice who did not retire at the age of seventy, up to a maximum membership of fifteen. Despite the President's sweeping electoral victory in 1936, and intensive political efforts by the administration for four months, the plan failed to pass the Senate. A number of factors contributed to the result. The argument based on age and inefficiency, stressed by proponents at the outset, was transparently disingenuous. A letter from Chief Justice Hughes, joined by Justices willis van devanter and Brandeis, to Senator Burton K. Wheeler, at the latter's request, effectively refuted the charge that the Court needed additional members to keep abreast of its docket. The Court itself, while the bill was pending, sustained a state minimum wage law, the National Labor Relations Act, an amended Farm Bankruptcy Act, and the Social Security Act. As one senator remarked, "Why keep on running for the bus after you've caught it?" Moreover, Congress enacted a new retirement act for Supreme Court Justices, which made retirement more acceptable. Since 1869 a full pension had been provided for, but as retirement was equivalent to resignation under the statute, the pension was subject to the will of Congress and in 1932, as an economy measure, it had been reduced by half and was later restored. The act of 1937, by enabling retired Justices to serve on the lower federal courts, placed their retirement compensation under constitutional protection against diminution. Justice Van Devanter availed himself of this new law, giving the President his first opportunity to make an appointment and lessening further the need for enactment of his plan. But perhaps the most powerful factor leading to its defeat was a pervasive feeling, even among groups holding grievances against particular decisions, that the independence of the judiciary was too important a principle to be sacrificed, even under the extreme provocation furnished by a majority of the Court itself.

The appellate jurisdiction of the Court became a target of attack in 1958, as it had been in the early nineteenth century. Senator William E. Jenner of Indiana, reacting against decisions curtailing governmental actions in the field of loyalty investigations, introduced a series of bills withdrawing Supreme Court jurisdiction in this and related classes of cases. Passage was narrowly averted by the efforts of the then majority leader, Senator lyndon b. johnson. Comparable bills were introduced in 1982 to preclude review of decisions concerning abortion and school prayers. Such efforts, if successful, would produce chaotic results. In the name of the federal Constitution, varying decisions, for and against local laws, would stand unreconciled; the Supreme Court would have no opportunity to reconsider or modify its precedents; state and federal judges would be left to take different positions on the binding effect of prior Supreme Court decisions.

It is apparent that in the recurrent clashes of party, section, and class that have marked American history, the Court, whose role, in principle, is that of an arbiter, has not escaped the role of participant. In these judicial involvements, extraordinary force on one side has induced similar force on the other. A dramatic example is the contest over the production of the White House tapes for use as evidence in the prosecutions growing out of the Watergate break-in. President richard m. nixon refused to comply with a subpoena issued by the district court, on the ground of executive privilege. The tension between the rule of law and presidential immunity from suit had been resolved in part by bringing suit against a subordinate who was carrying out presidential orders, as in the steel seizure case, youngstown sheet and tube co. v. sawyer (1952), where the named defendant was the secretary of commerce. President Nixon, however, forced the issue by taking sole custody of the tapes. On appeal, the Supreme Court responded with the countervailing measure of holding the President amenable to the process of a court where the need of evidence in a criminal trial outweighs a generalized claim of privilege. The unanimity of the decision (with one abstention) was doubtless a factor impelling the President to yield, thus avoiding an ultimate confrontation.

That the supreme judicial tribunal, without the power of purse or sword, should have survived crises and vicissitudes and maintained its prestige can be ascribed partly to its own resourcefulness and partly to the recognition by a mature people of the Court's necessary functions in the American constitutional democracy. The Court's resourcefulness owes much to the central paradox of its work: it decides issues of great political moment, yet it does so in the context of a controversy between ordinary litigants in a conventional lawsuit. That setting provides a test of concreteness in the formulation of doctrine, allows flexibility of development, and enables the Court to adapt and refine doctrine as new factual and procedural settings may suggest.

The Supreme Court's essential functions, performed within the framework of conventional lawsuits, are fourfold: to resolve controversies between states; to assure the uniform application of national law; to maintain a common market in a continental union; and to enforce the guarantees of liberty and equality embodied in the bill of rights, the post-civil war amendments, and other provisions of the Constitution.

Although the Court's jurisdiction over suits between states is statistically insignificant, the function is of practical and symbolic importance, serving as a substitute for diplomacy and war in disputes over boundaries, allotment of waters, and the like. Because these cases originate in the Supreme Court, factual disputes are referred to a special master for hearings, findings, and recommendations, which are then presented to the Court for argument and decision.

The uniform interpretation and application of national law has become increasingly important with the proliferation of federal regulatory statutes and administrative rules. For almost a century, until 1938, the Supreme Court essayed a broader concept of uniformity in the common law itself, in fields such as commercial law and torts, under the doctrine of swift v. tyson (1842), which empowered the federal courts to pronounce a federal common law without regard to the common law of particular states. Sweeping as it was, the doctrine was truncated, for the federal common law could have no binding authority in state courts, and thus a bifurcated system of common law developed, along with a practice of forum shopping by lawyers as between federal and state courts. The doctrine was repudiated by the Court in erie railway v. tompkins (1938) in an opinion by Justice Brandeis that branded as unconstitutional the course theretofore pursued by the federal courts. With the demise of Swift v. Tyson the rationale for retaining diversity of citizenship jurisdiction in the federal courts, for the decision of matters of state law, was materially weakened.

The maintenance of a common market is a modern description of a historic function of the Court, exercised since Marshall and his colleagues decided in gibbons v. ogden (1824) that the constitutional power of Congress over commerce among the states implied a negative on state power, even when Congress has not acted, and that the Supreme Court would enforce that implied prohibition. For a generation these commerce clause cases elicited a series of decisions upholding or setting aside state regulations—of quarantine, pilotage, intoxicating liquors, entry fees—by classifying them as either regulations of commerce, and so invalid, or regulations of local health or safety, and so valid as police power measures. This effort at classification obscured the process of judgment by treating a conclusory label as if it were a premise for reasoning. A pivotal change in methodology occurred in cooley v. board of wardens (1852), a pilotage case where the opinion by Justice benjamin curtis recognized that commercial regulation and police power were not mutually exclusive categories, and that decision should turn on an empirical judgment, weighing the necessity of the local law, the seriousness of the impact on commerce, the need for uniformity of treatment, and the possible discriminatory impact on out-of-state enterprise. This kind of scrutiny, and comparable analysis of local taxation when challenged by multistate business, have been staples of Supreme Court adjudication and exemplars for other economic federations struggling to accommodate local interests and those of a union.

The most intensive, acclaimed, and in some quarters questioned, aspects of the Court's work has been the elaboration of fundamental human rights. While in England the great expressions of these rights are found in the writings of philosophers and poets—the secular trinity of john milton, john locke, and john stuart mill—in America the pronouncements are embodied—Jefferson apart—in the judicial opinions of Holmes, Brandeis, Hughes, Stone, robert h. jackson, hugo l. black, and other Justices. The development of a body of civil liberties guarantees, mainly under the Bill of Rights and the fourteenth amendment, reached its fullest flowering during the Chief Justiceship of earl warren (1953–1969), though the seeds were planted in the hughes court.

During the 1930s, while public attention was focused on the Court's struggle with national power over the economy, path-breaking advances were made in a series of decisions applying federal constitutional guarantees against the states. It is more than coincidence that this development occurred at a time of rising totalitarianism abroad. freedom of the press and freedom of association and assembly were unmistakably put under the protection of the liberty secured by the Fourteenth Amendment in near v. minnesota (1931) and dejonge v. oregon (1937), respectively. The principle that a conviction in a state court following the use of a coerced confession is a violation of due process of law was announced for the first time brown v. mississippi (1936). A state's duty to afford racial equality in education was sharpened in missouri ex rel. gaines v. canada (1938): it could not be satisfied by resort to a neighboring state. Mayors and governors were subjected to the reach of federal judicial process in hague v. cio (1939) and Sterling v. Constantin (1932), an accountability that came to be important in later contests over desegregation.

If the drama of these seminal developments was largely overlooked, the same cannot be said of the great expansion of civil liberties and civil rights by the warren court. The leading decisions have become familiar landmarks. baker v. carr (1962), requiring substantial equality of population in electoral districts within a state, asserted judicial power over what had previously been deemed a political question; Chief Justice Warren regarded it as the most important decision of his tenure, because of its potential for redistributing basic political power. brown v. board of education (1954, 1955) was both the culmination and the beginning in the long drive against racial discrimination : doctrinally a climax, practically a starting point in the devising of remedies. miranda v. arizona (1966), limiting police interrogation of suspects in custody and giving suspects the right to counsel during interrogation, has become a symbol of the Court's intense concern for standards of criminal procedure, a concern that has sometimes been viewed as an index to a society's civilization. The equal protection guarantee, which Justice Holmes in 1927 could call the last refuge of a constitutional lawyer, was revitalized in the service not only of racial minorities but of other stereotyped groups: aliens, illegitimates, and women. Freedom of the press was extended well beyond freedom from restraint on publication: In actions for libel brought by public figures following new york times v. sullivan (1964), the defendant publisher would be liable only if he acted with legal malice, that is, with knowledge of the publication's falsity or with reckless disregard for its truth or falsity.

A constitutional right of privacy, of uncertain scope, extending beyond the explicit search and seizure guarantee to encompass at least certain conjugal intimacies, was established in griswold v. connecticut (1965). The religion clauses of the first amendment were given new vitality in decisions rejecting organized prayer in the public schools, such as engel v. vitale (1962).

On any measure, it is an impressive performance. The momentum was somewhat slackened during the first decade and a half of Chief Justice warren e. burger's tenure, particularly in the areas of criminal procedure and nonestablishment of religion; yet during this period the Court reached the high-water mark of constitutionally protected autonomy in roe v. wade (1973), upholding freedom of choice respecting abortion in the first two trimesters of pregnancy.

Criticism of the modern Court has taken diverse directions. Some critics have complained that the Court has been unfaithful to the historic meaning of constitutional provisions. But the argument begs the question of "meaning." If the term signifies denotative meaning, the particular instances that the Framers envisioned as comprehended in the text, the original meaning has indeed been departed from. If, however, the purposive meaning is accepted, and the application does not contradict the language of the text, there is no infidelity. Such an analysis will not disapprove, for example, the "meaning" ascribed to the freedom of the press in the First Amendment.

Another criticism charges defenders of the Court with a double standard: the modern Court is a mirror image of the pre-1937 Court, the judicial vetoes coming now from the left instead of the right. The asserted parallel, however, is inexact. The problem is to identify the appropriate role for judicial review in a representative democracy. The older Court set aside such products of the political process as minimum wage, price control, and tax legislation. The modern Court, by and large, has given its intensive scrutiny to two areas of law that are of peculiarly legitimate concern to the judiciary. One is the field of procedure, in a large sense, civil and criminal. The other is the set of issues concerning representation of interests in the formation of public opinion and lawmaking. This category would include freedom of speech and press and association, voting rights, education, and the interests of groups underrepresented in the formulation of public policy. This approach gives a certain coherence to constitutional theory: as the commerce clause protects out-of-state enterprise against hostility, open or covert, the Bill of Rights and the Civil War amendments especially protect the political, social, or ethnic "outsider" against official neglect or ostracism.

A more qualified criticism is addressed to two tendencies of the modern Court. One is a perceived disposition to carry a constitutional safeguard to excessive lengths, as in buckley v. valeo (1976), which held invalid, in the name of freedom of expression, statutory limits on expenditures by or on behalf of candidates for federal offices. The other, illustrated by the abortion and police interrogation cases, is an inclination, when holding a state law or practice invalid, to prescribe only a single form of corrective that will not offend constitutional standards.

A problem faced by the Court throughout much of its history, one that has again become acute, is the burden of an expanding caseload. In the last hundred years two statutory jurisdictional revisions brought temporary relief. The Circuit Courts of Appeals Act of 1891, by establishing a system of regional appellate courts, assured litigants of one opportunity for review without resort to the Supreme Court. The judiciary act of 1925, sponsored by the Justices themselves and promoted by Chief Justice william howard taft, made discretionary review by writ of certiorari, instead of appeal as of right, the normal mode of access to the Supreme Court.

Each solution, however, has in time become part of the problem. With thirteen courts of appeals, and the burgeoning of federal statutory law, there is a growing incidence of conflicting decisions calling for review. Moreover, the disposition of petitions for certiorari has occupied an increasing amount of the Justices' time, with more than 4,000 filed each term. Of these, approximately 175 are granted and the cases decided with full opinion after oral argument.

A study group appointed under the auspices of the Federal Judicial Center reported in 1972 that the caseload was reaching the saturation point. Certain ameliorative measures had already been taken. The normal time allowed for oral argument had been reduced from an hour to a half hour for each side. The number of law clerks had been increased in stages from one to four for each Justice. The study group expressed disquiet at what it viewed as a bureaucratic movement, and recommended the creation of a national court of appeals to review decisions that warranted review but not necessarily by the Supreme Court. Others proposed variations on this plan, notably one or more courts of appeals having specialized jurisdiction, in tax or criminal or regulatory cases. Sixty years after the 1925 act, the problem has not been resolved. And yet without adequate time for reflection, collegial discussion, critical scrutiny, mutual accommodation, and persuasive exposition, the Court cannot function at its best.

At its best, the Court can recall the legal profession and the people to an appreciation of their constitutional heritage, by translating the ideals and practices embodied in an eighteenth-century charter of the Enlightenment into the realities of a modern industrial democracy.

Paul A. Freund


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