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.
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.
See alsoConstitution of the United States ; Judicial Review ; Judiciary ; Separation of Powers andvol. 9:Women in Industry (Brandeis Brief) .
Supreme Court, U.S.
Supreme Court, U.S.
COMPOSITION AND FUNCTION OF THE COURT
JUDICIAL REVIEW AND U.S. POLICY
THE SUPREME COURT AND CONSTITUTIONAL DIALOGUE
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
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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
The 1930s was a period of transition and transformation for the United States Supreme Court. In 1930 the Court was comprised by the conservative "Four Horsemen": Willis Van Devanter, James Clark McReynolds, George Sutherland, and Pierce Butler; three constitutional liberals: Louis D. Brandeis, Harlan Fiske Stone, and Oliver Wendell Holmes (replaced in 1932 by the like-minded Benjamin Cardozo); and two constitutional moderates: Owen Roberts and Chief Justice Charles Evans Hughes. Of these, only Stone and Roberts would still be on the Court when the United States entered World War II in December 1941. Though Franklin Roosevelt would be frustrated by his lack of appointments to the Court during his first term, and by his inability to "pack" it early in his second, he would appoint seven New Dealers to the Court between 1937 and 1941: Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, James Byrnes, and Robert Jackson. Just as Roosevelt changed the face of the Court, his Court changed the face of American constitutional law.
This transformation took a variety of forms. By the end of the decade the Court had recognized significantly greater executive branch authority over domestic and foreign affairs, had upheld the massive regional power initiative embodied in the Tennessee Valley Authority, and had dramatically enhanced protections of civil rights and civil liberties, particularly concerning free speech and the rights of the accused. At the center of the Hughes Court's docket, however, were cases involving the constitutionality of the New Deal and related state attempts to confront the economic crisis that engulfed the nation. The key issues concerned the scope of the congressional powers to spend for the general welfare and to regulate interstate commerce, and the extent to which the provisions of the Fifth and Fourteenth amendments, most notably the due process clauses, limited state and federal regulatory authority. Many initiatives, particularly those involving spending, were comfortably accommodated by existing constitutional doctrine. Other programs were invalidated in their first incarnations, but survived challenge when reformulated to comply with constitutional requirements. Still others withstood challenge only due to transformations in constitutional doctrine brought about by changes in Court personnel. (Contentions that these doctrinal transformations and decisions sustaining New Deal legislation were caused by the pressure of Roosevelt's "court-packing plan" are more problematic.)
THE SPENDING POWER
The Roosevelt administration created the modern American welfare state, dramatically increasing both the number of federal programs designed to alleviate conditions of want and the amount of federal revenue devoted to that purpose. Yet no significant transformation of constitutional doctrine was necessary to accommodate this development. The Court did definitively settle a longstanding dispute in American constitutional discourse concerning the scope of the power to spend for the general welfare. Advocates of the Madisonian position had long maintained that the power to spend was confined to carrying into effect exercises of other powers enumerated in Article I, Section 8 of the Constitution, while advocates of the Hamiltonian position treated the power to spend as an independent grant of power not so limited. In United States v. Butler (1936) and the Social Security Cases (1937), the Court confirmed that the Hamiltonian interpretation was the correct one. Indeed, most of the justices do not appear to have regarded this conclusion as open to serious doubt: The old-age pension provisions of the Social Security Act, for instance, were upheld in Helvering v. Davis (1937) by a vote of seven to two. Moreover, it had long been recognized that congressional exercises of the spending power could be immunized from judicial review by designing them in light of the taxpayer standing doctrine. Frothingham v. Mellon (1923) had confirmed that so long as Congress appropriated the funds to be spent from general revenue rather than from a specified or "earmarked" tax, no one would have the right to question the constitutionality of the expenditure. The Supreme Court and the lower federal courts repeatedly invoked this doctrine, for example, in upholding grants and loans made by the Public Works Administration, one of the New Deal's most important and popular agencies. Furthermore, the formidable obstacle raised by the taxpayer standing doctrine appears to have successfully deterred any constitutional challenge to a wide variety of New Deal spending programs financed from general revenue. These included the Civilian Conservation Corps, the Farm Credit Act, the Reconstruction Finance Corporation, the Rural Electrification Administration, and the Emergency Relief Appropriation Act of 1936. Established constitutional doctrine assured the safety of the safety net.
CONSTITUTIONAL CONSULTATION AND CONGRESSIONAL ADAPTATION
The justices were less receptive to a number of federal regulatory programs of the early New Deal. Yet it would be a mistake to conclude that the decisions invalidating these congressional statutes were motivated simply by hostility to their objectives. The opinions in a number of these cases offered implicit or explicit suggestions on how the statute might be reformulated so as to achieve its aim in a constitutional manner. In several instances Congress took the hint and redrafted the statute, this time paying greater attention to the constraints imposed by contemporary constitutional doctrine. The justices uniformly upheld this second generation of statutes, just as the earlier opinions had suggested they would.
So, for example, in May 1935 Justice Brandeis wrote the unanimous opinion in Louisville Joint Stock Land Bank v. Radford invalidating the Frazier-Lemke Farm Debt Relief Act of 1934 on the ground that it took the property of creditors without due process of law in violation of the Fifth Amendment. His opinion painstakingly identified the statute's constitutional deficiencies, enabling Congress quickly to eliminate those flaws in a reformulated statute enacted that summer. The Court upheld the revised statute in Wright v. Vinton Branch Bank in 1937. The decision was again unanimous—even the Four Horsemen agreed that Congress had rectified the earlier statute's shortcomings.
In early 1935 the Court also heard a challenge to the New Deal's program to stabilize oil prices in the face of frenetic wildcat drilling in the East Texas oil fields. Section 9(c) of the National Industrial Recovery Act authorized the president to prohibit interstate shipments of so-called contraband or hot oil—oil produced in excess of that allowed by the law of the state of production. The Court invalidated Section 9(c) by a vote of eight to one, holding that Congress had not provided any standard to guide the president's implementation of congressional policy, and that this omission constituted an unlawful delegation of legislative authority to the executive. Hughes's opinion left little doubt that Congress could achieve its policy objective—it needed only to remedy the delegation problem. Congress promptly did so with the Connally Act, which was uniformly upheld in the lower courts and unanimously sustained by the Supreme Court in 1939.
The Guffey Coal Act of 1935 sought to bring order to cutthroat competition in the coal industry in two ways: first, by regulating the price at which coal moved in interstate commerce, and second, by regulating wages, hours, and labor relations at the mines. In Carter v. Carter Coal Co. (1936), the Court struck down the labor provisions of the Act on the ground that they regulated local production, a matter reserved to the states. The Court held that the price regulation provisions were inseparable from the labor provisions, and thus must fall with them. The majority did not, however, hold the price regulation provisions independently unconstitutional. Chief Justice Hughes wrote a concurring opinion explicitly stating his view that the price regulation provisions were constitutional. Justice Cardozo's dissent agreed with Hughes on this point, and suggested moreover that a statute regulating only the price of coal might nevertheless indirectly stabilize labor relations by enabling employers to pay higher wages. Observers in Congress construed the Carter opinions to indicate that a new statute containing only the price regulation provisions would be upheld by the Court. In 1937 Congress enacted such a statute, the Bituminous Coal Conservation Act of 1937. When the Act was upheld by the Court in Sunshine Anthracite Coal Co. v. Adkins (1940), only Justice McReynolds dissented.
In 1935 the Court held by a vote of five to four that the Railroad Retirement Act of 1934 was unconstitutional, on two grounds: because a number of its provisions violated the due process clause of the Fifth Amendment, and because creating a pension system for railroad workers lay beyond the power of Congress to regulate interstate commerce. Many observers, including Chief Justice Hughes, believed that this latter objection meant that no comparable pension legislation, even if revised to rectify the due process problems, could be sustained. Yet some in Congress recognized that a pension system financed out of general revenue rather than from a specific source would be insulated from constitutional challenge under the taxpayer standing doctrine. The revenue necessary to finance the payments could be raised by a separate tax on interstate carriers, with the proceeds of the tax paid into the treasury rather than earmarked for pension payments. At the urging of President Roosevelt, representatives of the major railroads and railway unions negotiated the terms of such a system, and by the summer of 1937 it had been embodied in the Carrier Taxing Act and the Railroad Retirement Act. Representatives of the railroads and the unions, moreover, honored their pledges not to contest the constitutionality of the legislation, and the pension system they negotiated survives in modified form today.
A similar story of congressional adaptation unfolded in the domain of agricultural policy. The Agricultural Adjustment Act of 1933 sought to lift farm commodity prices by reducing output. The mechanism for doing so was the acreage reduction contract, under which a farmer would agree to reduce production in exchange for a payment from the secretary of agriculture. These payments were to be financed by a special excise tax on food processors rather than from general revenue, which enabled a taxpayer challenging the validity of the excise to question the constitutionality of expenditures underwritten by his tax payments. In United States v. Butler (1936), the Court invalidated the tax, holding that it was a step in a plan to regulate agricultural production in violation of the Tenth Amendment.
Though Butler held that the excise tax could no longer be collected, the administration continued to pay farmers holding acreage reduction contracts out of general revenue. Congress effectively reenacted the program two months after the Butler decision with the Soil Conservation and Domestic Allotment Act of 1936, which paid farmers to shift acreage from "soil-depleting" to "soil-conserving" crops. This time the payments were to be made from general revenue, effectively immunizing them from constitutional challenge. In 1938 Congress enacted a second Agricultural Adjustment Act, which sought not to regulate the production of farm commodities, but instead authorized the secretary of agriculture to establish marketing quotas for such crops. The Act's congressional sponsors read a passage from Roberts's opinion in Butler to suggest that such a regulation of interstate commerce in agricultural produce might pass muster where the earlier Agricultural Adjustment Act had fallen short. This judgment was vindicated the following year by Roberts's opinion upholding the Act in Mulford v. Smith.
The unemployment compensation provisions of the Social Security Act provide a final illustration of this phenomenon. Justice Brandeis was himself intimately involved in conceptualizing, drafting, and even lobbying for the program. Brandeis's advice on framing the statute to withstand constitutional challenge was vindicated when the Court upheld the Act's provisions in Steward Machine Co. v. Davis (1937). And while two of the dissenting justices believed that certain provisions of the statute as ultimately enacted were unconstitutional, their opinion made it clear how Congress could easily remedy those deficiencies, thereby bringing the statute into conformity with constitutional requirements. At the same time, the Court upheld Alabama's state unemployment compensation statute by a vote of five to four. Yet three of the four dissenting justices indicated that, while the statute under review was plagued by constitutional defects, the relief of unemployment was an objective within the constitutional power of the states. The dissent identified the deficiencies in the statute and suggested the manner in which they might be rectified, specifically holding up as an exemplary constitutional statute the unemployment compensation act of Wisconsin. That Wisconsin statute had been drafted by Paul Raushenbush, Justice Brandeis's son-in-law, based on a memorandum written by the justice himself.
SUBSTANTIVE DUE PROCESS
Yet the fact that many of the objectives of the New Deal could be and ultimately were accommodated within the framework of existing constitutional doctrine should not obscure the real and significant changes in constitutional law that occurred between the onset of the Depression and the early years of World War II. Among the most important of these was a weakening of the constraints imposed upon federal and state economic regulation by the Fifth and Fourteenth amendments. The extent to which the Court deployed those amendments to obstruct regulatory reform in the decades preceding the Depression has often been significantly overstated. Nevertheless, there can be no disputing the fact that those constitutional constraints were far more substantial in 1930 than they were in 1940. Between 1921 and 1927, the Court had invalidated approximately 28 percent of the economic regulations alleged to violate the due process clause, often because the entity regulated was not a business "affected with a public interest." By the end of the 1930s, that percentage would drop to zero, and that legal category would have disappeared from the constitutional lexicon. It became clear early in the decade that President Herbert Hoover's appointments of Hughes and Roberts in 1930 had made a significant difference. In 1931, a narrowly divided Court issued an opinion upholding state regulation of commissions paid to fire insurance agents, in language indicating considerable deference to legislative judgment. That signal would be amplified in dramatic fashion in 1934, when the Court upheld a New York statute regulating the price of milk in Nebbia v. New York. "There is no closed class or category of business affected with a public interest," wrote Justice Roberts for a five to four majority. The guarantee of due process required only that the regulation be reasonable. Earlier that year the Court had surprised many observers by upholding the Minnesota Mortgage Moratorium in Home Building & Loan Association v. Blaisdell (1934). After Nebbia was decided, Justice McReynolds wrote despairingly to a friend that these two cases marked "the end of the constitution as you and I regarded it. An alien influence has prevailed." (McReynolds would similarly announce in open court that "The Constitution is gone" when, in early 1935, the Court upheld the administration's historic reorientation of monetary policy in the Gold Clause Cases). Meanwhile, New Dealers saw Nebbia's sweeping approval of price regulation as a signal that the justices were prepared to sustain a variety of regulatory reforms, first among them the minimum wage. The Court did uphold the Washington minimum wage statute in West Coast Hotel v. Parrish (1937), though only after invalidating a similar New York statute the preceding year for what appear to have been technical reasons.
Yet neither Nebbia nor Parrish constituted a total repudiation of substantive due process. Hughes and Roberts had struck down a regulation designed to exclude new entrants to the ice business in Oklahoma in New State Ice v. Liebmann (1932); they would similarly join the majority invalidating provisions of a New York regulation raising a barrier to entry in Mayflower v. Ten Eyck (1936), and would dissent from the decision upholding a federal regulation disadvantaging small milk handlers in United States v. Rock Royal Cooperative (1939). Roberts would vote to invalidate a discriminatory state tax under the privileges or immunities clause in Colgate v. Harvey (1935), and would dissent from the opinion upholding a comparable tax in Madden v. Kentucky (1940). And when the Court effectively overruled Roberts's 1935 railway pension decision in United States v. Lowden (1939), Roberts suppressed the dissent he had voiced in conference. "Regulatory legislation affecting ordinary commercial transactions," as the Court put it in United States v. Carolene Products (1938), would come to enjoy a virtually irrebuttable presumption of constitutionality, but only once Roosevelt appointments had begun to replace the retiring Four Horsemen, thereby depriving Hughes and Roberts of control over the Court's center.
THE COMMERCE POWER
Nebbia did, however, enable Congress to regulate the price at which such items as coal and agricultural produce moved in interstate commerce. The Shreveport Rate Cases (1914) permitted federal regulation of intrastate railroad rates where it was shown that such regulation was necessary to effective control of interstate rates. The Shreveport doctrine had always been confined to businesses affected with a public interest, because only such businesses were amenable to rate regulation. But with Nebbia's abolition of that limitation, Congress could draw upon Shreveport in regulating intrastate sales of a broad range of commodities. The Court relied on Shreveport in sustaining congressional regulation of intrastate sales of tobacco in Currin v. Wallace (1939) and Mulford v. Smith (1939), and of milk in United States v. Wrightwood Dairy Co. (1942).
Nebbia also enlarged the category of local activities that could be regulated by Congress because they occurred in a "stream" of interstate commerce. Application of the stream of commerce doctrine had always been limited to businesses affected with a public interest, such as public stockyards and grain exchanges. After Nebbia, however, virtually any business located in such a flow was arguably subject to federal regulation. This development was of no consequence in the "Sick Chicken Case," United States v. Schechter Poultry Co. (1935), which struck down a conviction under the Live Poultry Code of the National Industrial Recovery Act on the ground that the code regulated a "local" activity (butchering) that affected interstate commerce only "indirectly." (The decision prompted Roosevelt to accuse the justices of having a "horse and buggy" conception of interstate commerce.) Schechter's slaughterhouse was not in a stream of commerce because interstate transportation had come to an end—the butchered chickens were sold locally rather than in interstate trade. The Guffey Coal Act invalidated in Carter Coal suffered from the same problem, but at the other end: The coal mine lay at the source of the stream rather than amidst its interstate flow. When defending the collective bargaining provisions of the National Labor Relations Act, therefore, attorneys for the government carefully selected test cases involving factories that brought in raw materials from outside the state of production and then shipped their products for sale across state lines. They argued that these businesses were located in a stream of interstate commerce, and that a strike at the plants could disrupt the interstate flow of that stream. The Court upheld application of the Act to those business in the Labor Board Cases (1937). Throughout the late 1930s, decisions in which the Court upheld application of the Wagner Act hesitated to suggest that the commerce power had been significantly enlarged. Uncertainty about the scope of the commerce power would not be resolved until the early 1940s, long after the court-packing plan was dead and buried, when Roosevelt appointees dominated the Court.
In United States v. Darby (1941), the Court upheld the Fair Labor Standards Act, which banned child labor and prescribed maximum hours and minimum ages for businesses selling goods in interstate commerce. And in Wickard v. Filburn (1942), the Court upheld a penalty imposed on a farmer for planting more wheat than he was allotted under the terms of the Agricultural Adjustment Act. Roscoe Filburn argued that he did not intend to sell the wheat, but only to keep it for use and consumption on his farm. Justice Jackson's opinion responded that if many farmers emulated Filburn, they would reduce the overall demand for those crops and thus the price at which those crops moved in interstate commerce. Congress could therefore reach Filburn's activity as a means of regulating the interstate price of wheat. Internal Court records show that not all of the justices were comfortable with such expansive interpretations of the commerce power. By the end of the Depression, however, no one could doubt that there had been a dramatic increase in the federal government's power to regulate the nation's economy.
See Also: LEGAL PROFESSION; SUPREME COURT "PACKING" CONTROVERSY.
Cushman, Barry. "The Secret Lives of the Four Horsemen." Virginia Law Review 83 (1997): 559-645.
Cushman, Barry. "The Hughes Court and Constitutional Consultation." Journal of Supreme Court History 1998 (1998): 79-111.
Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. 1998.
Cushman, Barry. "Lost Fidelities." William & Mary Law Review 41 (1999): 95-145.
Cushman, Barry. "Formalism and Realism in Commerce Clause Jurisprudence." 67 University of Chicago Law Review 67 (2000): 1089-1150.
Cushman, Barry. "Mr. Dooley and Mr. Gallup: Public Opinion and Constitutional Change in the 1930s." Buffalo Law Review 50 (2002): 7-101.
Friedman, Richard D. "Switching Time and Other Thought Experiments: The Hughes Court and Constitutional Transformation." University of Pennsylvania Law Review 142 (1994): 1891-1984.
Irons, Peter H. The New Deal Lawyers. 1982.
Leuchtenburg, William E. The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. 1995.
Mason, Alpheus Thomas. Harlan Fiske Stone: Pillar of the Law. 1956.
Parrish, Michael E. "The Hughes Court, the Great Depression, and the Historians." The Historian 40 (1978): 286-308.
Parrish, Michael E. "The Great Depression, the New Deal, and the American Legal Order." Washington Law Review 59 (1984): 723-50.
Pusey, Merlo J. Charles Evans Hughes. 1951.
White, G. Edward. The Constitution and the New Deal. 2000.
The "least dangerous" branch was Alexander Hamilton's classic description of the U.S. judiciary in Federalist No. 78 (1788), because it had "no influence over either the sword or the purse." This description was still accurate in 1828, but dramatic changes had occurred during the intervening four decades. However committed to the separation of powers, the framers of the Constitution emphasized the political branches. The order of their presentation demonstrates the level of their concern. Article I defines legislative authority in 2,279 words. Article II presents the executive in less than half that space, 1,012 words. By comparison the judiciary, provided for in Article III, seems almost an afterthought, described in only 365 words. The Supreme Court is established in the first sentence: "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." Another sentence provides a brief but highly significant list of authorities granted to this court (or courts), including "all cases … arising under this Constitution and … the laws and treaties … under their authority." Seven additional sentences assure judicial independence, assign areas of original and appellate jurisdiction, guarantee criminal jury trials, and define rules for treason cases.
judiciary act of 1789
Original jurisdiction granted by the Constitution to the Supreme Court was limited to "Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party." All other cases were supposed to reach the Supreme Court through appeals—but appeals from whom? The most contentious judicial issue in the Constitutional Convention, whether there should be subordinate federal courts or whether state fears should be mollified by advancing federal issues only from state courts, was left for the first Congress to resolve. Therefore, it was important that Congress act promptly and creatively in determining the structure of the federal judiciary, including even the structure of the Supreme Court. The first Senate rose splendidly to the challenge. While the House of Representatives focused on economic and administrative issues, the Senate's first major assignment was to create the Judiciary Act of 1789, described as one of the greatest, and certainly one of the longest lasting, laws in American history. It survived nearly unchanged for a century and early in the twenty-first century remains an essential part of the American judiciary.
Oliver Ellsworth of Connecticut chaired the Senate's grand committee, ably abetted by William Paterson of New Jersey. Having succeeded in the Constitutional Convention of 1787 in guaranteeing a strong role for small states such as theirs, they now cooperated in the Senate to establish a strong judiciary despite their earlier concerns that state judiciaries would be weakened unjustly if forced to compete with federal courts at the local level. Both would soon be appointed to the Supreme Court that they created, Paterson in 1793 and Ellsworth in 1796 as chief justice. The legislation was reported in June and then debated for sixteen weeks until it became law on 24 September 1789. It established a Supreme Court of six justices, augmented by thirteen district courts and three circuit courts to which federal issues could be appealed. Districts were linked to state boundaries, except that Maine and Kentucky, which were not yet states, each had its own district court. Because of delays in the ratification of the Constitution, North Carolina and Rhode Island had not yet been added to the new nation while the judicial legislation was in process. The single judge in each district court would sit with two Supreme Court justices to staff the circuit courts. Most important (and controversial) was section 25, which allowed appeals to the Supreme Court from state courts. President George Washington, obviously waiting anxiously for passage of this legislation, sent the names of six justices on 24 September; they were confirmed two days later by the Senate.
justices on horseback
The Supreme Court justices' early years were devoted to incessant travel to circuit courts and to vigorous protection of judicial independence. They soon learned how exhaustive service in circuit courts ranging from New Hampshire to Georgia could be. Congress granted a single concession in response to continual complaints and occasional resignations regarding this burden. Beginning in 1793 only one justice was required for each circuit court, sitting with a district judge. Despite the resentment and exhaustion, the justices' presence in local courts provided important opportunities for them to establish their independence. In particular, on circuit they were able to establish a foundation for the judicial review that would be confirmed later by the Marshall Court. Without strong objection, circuit courts ruled actions
by the Connecticut, Rhode Island, and Vermont legislatures to be in conflict with the U.S. Constitution. In Hayburn's Case (1792), two circuit courts ruled that Congress had exceeded its constitutional limits by assigning Supreme Court justices to nonjudicial functions. The justices softened this affront by carrying out their assignment as "special commissioners" rather than as judges. In Hylton v. U.S. (1796), the Supreme Court ruled that a carriage tax passed by Congress was not a violation of the Constitution; ruling that the tax was constitutional at least implied that it might instead have been found to be unconstitutional.
Nine of Washington's ten appointees were Federalists in both senses of the word: strong supporters of the Constitution as well as active participants in the political party that would soon be known as Federalists. The exception was Samuel Chase, whose strident Federalist partisanship offset his initial opposition to the Constitution. John Adams's three appointees all voted Federalist, while all seven of the justices appointed after Marshall were Republicans—although Joseph Story embraced John Marshall's Federalist jurisprudence. Marshall and Henry Brockholst Livingston had likewise supported ratification of the Constitution as young men.
judiciary act of 1801
Partisanship proved a massive barrier to Congress's one attempt to remove the responsibility that caused so many to resign or refuse appointment to the Supreme Court. The Judiciary Act of 1801, approved just weeks before Thomas Jefferson became president, sought to relieve the justices of circuit-riding responsibilities. It created six new circuit courts and, most important, provided circuit judges for all of those courts. Under it, Supreme Court justices would no longer rule on issues that they had already decided on circuit. Much of value was included in the legislation, but the timing was abominable. President Adams and a Federalist-dominated lame duck Senate quickly proved the accuracy of Republican assumptions that all sixteen new circuit judges and their accompanying clerks and marshals, plus a few new district judges, would be Federalists. Even decreasing the Court from six to five, which had the virtue of reducing the number of tie votes, was also suspect because it would not become effective until the next justice died or retired. Jefferson would not only inherit Federalist judges with a prospect of lifetime service, he would not even be able to appoint a replacement when the first Federalist Supreme Court justice died. Worse yet, these "midnight appointees" to the circuit courts were given increased jurisdiction, further threatening the viability of the state courts.
The Republican Congress rescinded the Judiciary Act of 1801 at the first opportunity, early the following year, abolishing the new courts and judges and consigning Supreme Court justices again to the circuit courts. This blow was softened somewhat by the Judiciary Act of 1802. It increased the number of circuit courts to six, with one justice assigned to each one for two sessions. Justices' travel burdens were lessened further by decreasing Supreme Court responsibilities from two two-week sessions annually to a single four-week session. Judicial reform was so politicized in 1801 and 1802 that significant change remained nearly impossible for decades.
Fortunately, the Federalists who still packed the Supreme Court shared the realism of their new leader, the politically adept Chief Justice Marshall. He recommended quiet acquiescence in the changes; only the volatile Samuel Chase demanded that they refuse to return to the circuit courts. Paterson, who had been second only to Chase in blatant partisanship when addressing juries in sedition cases, rendered his greatest service as a justice when he ruled in Stuart v. Laird (1803) that the Judiciary Act of 1802 was constitutional.
finally some republican justices
Federalist justices maintained their majority on the Supreme Court throughout Jefferson's presidency and most of Madison's first term. The first Republicans were appointed in 1804 and 1806. Even Kentuckian Thomas Todd's appointment in 1807 did not bring the Republicans to equal representation, because he was named to a seventh position, established to serve the new western circuit. Not until 1812, after Gabriel Duvall (November 1811) and Joseph Story (February 1812) had replaced two deceased Federalists, did Marshall and Bushrod Washington finally become a Federalist minority, albeit a very influential one.
In fact, Marshall's most productive years came during the Republican ascendancy. Republicans on the bench did not really become Federalists, as Jefferson sometimes contended, but Marshall's congenial personality and the responsibilities of the bench often persuaded them to side with his judicial nationalism. Because Madison did not share the antagonism that Jefferson had long felt for Marshall, the chief justice in turn acted less politically on the bench during Madison's presidency. Marshall never crossed over to the Republicans, but by 1817 there was really no Federalist Party to abandon.
Chief Justice Marshall introduced significant revisions of court procedures without need for additional judiciary legislation. His first decision, Marbury v. Madison (1803), marked an advance from seriatim decisions (in which justices individually read their own opinions) to majority opinions that could be accompanied by dissenting and concurring opinions. During Chief Justice Ellsworth's brief tenure, individual decisions were sometimes abandoned; after 1803 seriatim decisions were rare. The Jay Court, where each justice stated his own opinion with the chief justice speaking last, sometimes left the public wondering just what the Supreme Court had said. When John Marshall spoke for the majority, the message came loud and clear.
See alsoConstitutional Convention; Constitutional Law; Judiciary Act of 1789; Judiciary Acts of 1801 and 1802; Marbury v. Madison; Marshall, John; Presidency, The: John Adams; Supreme Court Justices .
Casto, William R. The Supreme Court in the Early Republic: The Chief Justiceships of John Jay and Oliver Ellsworth. Columbia: University of South Carolina Press, 1995.
Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1815. Columbia: University of South Carolina Press, 1997.
Marcus, Maeva, ed. Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789. New York: Oxford University Press, 1992.
Urofsky, Melvin, and Paul Finkelman. A March of Liberty: A Constitutional History of the United States. 2nd ed. Vol. 1. New York: Oxford University Press, 2001.
Donald O. Dewey
The War for Independence created a new nation, which the Supreme Court helped to shape. Authorized by the federal Constitution (ratified in 1788) and formed by the Judiciary Act of 1789, the Court was expected by some to be the weakest of the three branches of government. In the next forty years, however, as it dealt with the legacies of the Revolutionary War, the nation's territorial expansion, and issues of diplomacy, war, trade, and economic development, the Court played a key role in establishing the foundations for American society and culture.
legacies of the revolution
One of the tasks resulting from the War for Independence and facing the Supreme Court was the definition of American citizenship, which was essential for resolving litigation involving the prosecution of treason and the confiscation of property during that war. Looking to state procedures, the Court determined the date at which residents of a state were required to choose between loyalty to Great Britain and adherence to their revolutionary state government. After that date, individuals who remained in the state and accepted its protection would be considered citizens and thus subject to prosecution for treason if they joined in warfare against their state. However, some property rights, such as a married woman's right to dower in her husband's real estate, were not affected by a spouse's treasonable or disloyal actions.
During the American Revolution, most state governments enacted laws seizing the real or personal property of inhabitants who remained loyal to the British crown, and other state legislation canceled the debts Americans owed to British mercantile firms, but the Peace Treaty of 1783, as subsequently strengthened by the Jay Treaty of 1794, raised serious questions about the validity of these state actions. The debt cancellation issue was resolved by the U.S. Supreme Court in 1796, when it held that the states could not impede the collection of debts owed to British merchants when the federal government had by treaty guaranteed that these obligations would be paid (Ware v. Hylton, 1796). However, for over thirty years after the end of the Revolution the seizure of real property and the attempted forfeiture of land by state inheritance laws remained in litigation until the Supreme Court's decisions in 1812 and 1816 (Fairfax's Devisee v. Hunter's Lessee, 1812; Martin v. Hunter's Lessee, 1816). After closely examining the treaty provisions and state confiscation procedures, the Court held that when the transfer of title had been completed prior to the ratification of the peace treaty the state's action would be irrevocable; however, if the seizure was still in process at the time the treaty came into effect, the state's action was contrary to international law and hence invalid.
expansion, war, and federal authority
During John Marshall's tenure as chief justice of the Supreme Court (1801–1835), the United States embarked on what was then often described as its Manifest Destiny: to expand across the North American continent through the acquisition of new territories by purchase and conquest. The most notable and largest acquisition before 1824 was the Louisiana Purchase (1803). Although the Constitution authorized Congress to make rules for the administration of federal territories, it was silent concerning the legal and constitutional requirements for annexation except to the extent that treaties were perhaps authorized for this purpose. Although the Louisiana Purchase's constitutionality was never presented to the Court, the 1819 treaty acquiring Florida from Spain required the Court to rule on the issue. In American and Ocean Insurance v. Canter (1829), the Court indirectly approved of the annexation of Florida, giving judicial sanction to the purchase. Increasingly, the duty to protect settlers, maintain order, and govern territories fell to the military and naval departments of the federal government.
In the first three decades after the Constitution was ratified, the Napoleonic Wars resulted in American commercial ships being seized by both England and France, triggering a quasi-war with France (1797–1800) and outright war with Britain (1812–1815). The Supreme Court became heavily involved in establishing an American law concerning prize cases—the capture and forfeiture of enemy vessels as a result of economic warfare between warring nations. Under international law, the existence of hostilities justified the capture of enemy vessels. Hostilities also validated the seizure of neutral merchant ships that violated international law by trading illegally or violating an established naval blockade. Admiralty courts could declare both the goods in the ship and the ship itself forfeit to the capturing vessel and
its crew. The practice was expanded by governmental commissions authorizing private ship owners to capture enemy ships and bring them into port for trial in admiralty courts. These entrepreneurs were called privateers, and wartime provided an excellent opportunity to establish a fortune through privateering.
An appeal caused Chief Justice John Marshall and his colleagues to review the prize cases decisions of lower federal courts. This jurisdiction in federal tribunals predated the Constitution's ratification (1788), and during the Confederation period had been exercised by a committee of the Continental Congress and after 1781 by a federal Court of Appeals in Cases a of Prize and Capture. It was a decision of the old federal court of appeals that almost resulted in military conflict between the Commonwealth of Pennsylvania and the U.S. government; however, the Supreme Court resolved the conflict by its decision in U.S. v. Peters (1809). In its decree, the Marshall Court held that under the Articles of Confederation the federal court of appeals was empowered to review the decisions of the state admiralty courts. Furthermore, under the Constitution the new federal courts were required to enforce the decrees of the old federal court of appeals. This ruling confirmed the supremacy of the federal government in admiralty and maritime matters and validated the authority of the central government in the adjudication of prize cases.
Prior to the Civil War (1861–1865), the federal government maintained an extremely small military establishment, a situation based in part upon a distrust of standing armies inherited from the seventeenth-century English experience of government by Oliver Cromwell's major generals. The U.S. Constitution and supplementary legislation provided for state militia units, which under specified circumstances might be called into federal service to repel invasion or suppress riots. A 1795 congressional statute began the process of training militia units to meet federal standards, but the division of state and federal authority remained unclear. Some of the difficulties are shown by the U.S. Supreme Court decision in Houston v. Moore (1820), which dealt with a Pennsylvania militia private who refused to appear for his unit's rendezvous during the War of 1812. For this offense he was court-martialed, convicted, and fined by the state. Houston argued that the state court-martial did not have jurisdiction because under the U.S. Constitution he was part of the military forces of the United States. The Supreme Court reasoned that the state and federal courts had concurrent jurisdiction in this situation and that an offense might be subject to punishment by both the federal and state governments. The Houston case represents the beginning of a long line of cases that grew out of the dual and interconnected authority of the federal government and the states in militia command, training, and administration.
In its constitutional decisions, the Marshall Court made a major contribution in delineating the central government's authority. Foremost in this regard is the opinion in McCulloch v. Maryland (1819), which advanced the principle that although the federal government was limited in its scope it was supreme in areas where it exercised constitutional authority. Furthermore, Marshall pointed out that in addition to its enumerated powers the central government had all the constitutional authority that was "necessary and proper" to effectuate its exercise of the Constitution's enumerated powers. In the areas of war powers and the conduct of international diplomacy, the Marshall Court and its successors have tended to be deferential to the policy decisions made by the president and Congress.
economic growth and property rights
The decisions of the Marshall Court made significant changes in the nation's economic life. Essentially, the Court laid the legal and constitutional basis for a stable capitalist economy through the contract clause decisions (Fletcher v. Peck, 1810; Dartmouth College v. Woodward, 1819), thereby encouraging foreign investment. Stability and respect for private property rights were critical to the prosperity of the new nation. The Constitution's introduction of a nationwide common market, greatly advanced by the Marshall Court's broad construction of interstate commerce (Gibbons v. Ogden, 1824), lessened dependence upon foreign imports and also made the United States a desirable trading partner in the Atlantic world. Economic growth based on commerce and industrialization began the process of America's rise to world power and increased the need for military and naval organizations to defend expanding territorial limits and protect American national interests throughout the world.
The magnitude of the Marshall Court's achievements made the court an important branch of the federal government. At the same time that the Court grew in stature, it also enhanced federal power in matters of military, naval, and international concern. Although most of the legal and constitutional aspects of waging war were left for future Supreme Courts to resolve, the Court under Marshall made it clear that issues of federalism and separation of powers were to be resolved by the Supreme Court of the United States. As the military and naval forces of the United States grew in size and function, the Court would exercise growing authority concerning the war powers of the United States government.
Currie, David P. The Constitution in the Supreme Court: The First Hundred Years, 1789–1888. Chicago: University of Chicago Press, 1985.
Hawkins, George L., and Johnson, Herbert A. Foundations of Power: John Marshall, 1801–1815, vol. 2: History of the Supreme Court of the United States. New York: Macmillan, 1981.
Hobson, Charles F. The Great Chief Justice: John Marshall and the Rule of Law. Lawrence: University Press of Kansas, 1996.
Johnson, Herbert A. The Chief Justiceship of John Marshall, 1801–1835. Columbia: University of South Carolina Press, 1997.
Kuttner, James H. The Development of American Citizenship, 1608–1970. Chapel Hill: University of North Carolina Press, 1978.
White, G. Edward. The Marshall Court and Cultural Change, 1815–1835, vols. 3 and 4 in one: History of the Supreme Court of the United States. New York: Macmillan, 1988.
Herbert A. Johnson
See also:Supreme Court and War Powers; War of 1812.
Rehnquist's Illness Leads to Speculation About Succession
Chief Justice William H. Rehnquist disclosed in October 2004 that he was suffering from thyroid cancer. The illness caused him to miss several of the Supreme Court's oral arguments during 2004 and 2005 and reduced his position in several cases to the role of "tiebreaker" should the need have arisen. As the Court's October 2004 term neared its end, many speculated as to whether Rehnquist would retire and how his retirement would affect the chemistry of the current Court.
Rehnquist turned 80 years old on October 1, 2004. Only Roger Taney, who served as chief justice until the age of 87 during the late 1800s, has presided over the Court at an older age. Rehnquist sat through the first round of oral arguments before the Court in its October 2004 term. The last of these oral arguments took place on October 13. Rehnquist entered the Bethesda Naval Hospital in Maryland to receive treatment. He underwent a tracheotomy to allow him to breathe more easily, and he was released on October 29.
The timing of the announcement initially caused concern due to the impending presidential election. Rehnquist was one of the five justices who voted in the Court's decision that allowed George W. Bush to emerge as the victor in the 2000 presidential election. Bush v. Gore, 531 U.S. 98, 121 S. Ct. 525, 148 L. Ed. 2d 388 (2000). At the time that Rehnquist's illness became public knowledge, Bush and Senator John Kerry appeared to be in a close race during the 2004 election. Thyroid cancer is largely unpredictable, and many commented that it would be difficult to foresee how long Rehnquist would be absent, or whether he would return at all. Some speculated that the Bush-Kerry election could be so close that the Court could be called upon again to resolve it, and if Rehnquist were unavailable to participate, the Court would only have eight members to consider the case.
Bush won the election in November, but the speculation did not end. The most ideal scenario for succession involves the retirement of a justice at the conclusion of the Court's term in June. This allows the President and the Senate to complete the nomination and confirmation process in time for the Court to have a complete nine-member panel by the next October term. This sort of timing occurred in 1993 and 1994, when justices Byron White and Harry Blackmun retired at the end of those successive terms. Should Rehnquist have been forced to retire during the term, Bush would have had the power to nominate a successor before the end of the 2004 term. If Rehnquist were unable to participate on the Court but did not retire, however, the Court would be left with eight justices, leading to the possibility that the Court would reach 4-4 decisions. In the event of a tie vote, the lower court decision that the Court is reviewing is allowed to stand.
Rehnquist continued to receive radiation and chemotherapy treatments for the remainder of 2004, and he conducted his work at his home in Virginia. In December 2004, the Court announced that Rehnquist, who had not participated in oral arguments during the first two weeks of November, would not vote on those cases that the Court had heard unless it would be necessary to break a tie. He also did not attend the arguments before the Court between November 29 and December 8, but the Court said that he would participate in those cases by relying on the briefs and the transcripts of the oral arguments.
Rehnquist remained absent from the Court in January, but he was able to make his first public appearance since his cancer was announced by presiding over Bush's inauguration on January 20, 2005. Rehnquist used a cane to walk down to the Capitol stage, and he spoke with a clear but raspy voice. He used a scarf to hide the tracheotomy tube in his throat. Rehnquist had reportedly promised Bush that he would preside over the inauguration, though this remained in doubt until shortly before the ceremony.
When the Court reconvened for oral arguments on February 22, Rehnquist was again absent. The Court reiterated that Rehnquist would participate in cases that were heard in December and January and that Rehnquist would rely on briefs and transcripts from those cases to reach his decisions. On March 21, Rehnquist returned to the bench for the first time since October. Although he reportedly looked frail and spoke with a hoarse voice, he ran the Court much like he did prior to his illness. At the conclusion of the arguments on the first day of his return, he received assistance from Justice John Paul Stevens to reach a railing to help him walk. At 85 years of age (as of April 20), Stevens is currently the oldest justice on the Court.
The average age of the current justices is more than 70 years old. In addition to Rehnquist and Stevens, two other justices are older than 70, including Ruth Bader Ginsburg (72) and Sandra Day O'Connor (75). Four justices are in their 60s, including David Souter (65), Stephen Breyer (66), Antonin Scalia (69), and Anthony Kennedy (68). Only Clarence Thomas (56) has not reached 60 years of age.
Many commentators have noted that with Bush's victory in the 2004 election, the president could appoint as many as three new justices during his second term, including a new chief justice. Conservative and liberal organizations often keep close tabs on potential nominees, anticipating a battle over the selection of the justices. Bush's aides have said that the president maintains a list of potential nominees in the event that a vacancy on the Court occurs.
As the Court's term neared its end in May 2005, Rehnquist had not yet made an announcement regarding his retirement. Rehnquist was originally appointed to the Court in 1972 by President Richard M. Nixon. Rehnquist's early battles were with the liberal majority that existed on the Court during the 1970s. As the Court's views became more conservative, Rehnquist became much more persuasive. When Warren Burger retired from the Court, President Ronald Reagan nominated Rehnquist as the new Chief Justice.
The ten-year period during which no new Supreme Court justice has been appointed is the longest in U.S. history. Were Rehnquist to serve on the Court for three more years, he would equal the term of William O. Douglas, who from 1939 through 1975 served the longest term of any justice in history.
Sandra Day O'Connor to Step Down after 24 Years on the Supreme Court
On July 1, 2005, Sandra Day O'Connor announced her resignation from the U.S. Supreme Court. O'Connor became the first female justice of the high court in 1981, when President Ronald Reagan appointed her to fill a vacancy left by Justice Potter Stewart.
O'Connor was a classmate of Chief Justice William Rehnquist at Stanford Law School; he finished first in the class, while she graduated third in the class of 1952. She worked in private practice and as an assistant attorney general in Arizona, and was active in state and local Republican politics. In the early 1970s, she served as majority leader in the Arizona Senate. She became a trial judge in 1974. Five years later, she moved to the appellate bench in Arizona.
After O'Connor announced her resignation, the fight for her seat quickly geared up. A moderate conservative appointee would face a less contentious Senate confirmation battle, but many powerful groups are calling for a staunchly conservative nominee. Abortion will be a key issue.
O'Connor did not give abortion foes the support they had hoped for, although in 1983, she said the three-trimester framework set forth in Roe v. Wade was "on a collision course with itself." In the 1992 case of Planned Parenthood v. Casey, O'Connor voted with four other justices to uphold the "central holding" of Roe. In 2000, she was again the swing vote in Stenberg v. Carhart, where the court voted to strike down a Nebraska law that sought to prohibit "partial birth" abortions. By the time the Supreme Court adjourned in late June 2005, it had agreed to hear two cases involving abortion during its 2005-2006 term.
Both sides of the abortion debate quickly jumped into the fray regarding O'Connor's replacement. The National Organization for Women's website charged that "women's lives [are] on the line" and urged its supporters to save the court. At the NARAL Pro-Choice America website, visitors were urged to send donations and "tell your senators to vote NO on pro-choice nominees." Likewise, visitors to the National Right to Life's were told how to "advertise, lobby and activate the pro-life grass-roots" to confirm President Bush's nominee to the high court.
O'Connor's legacy is as a centrist voter, rather than as the conservative justice that some expected when she was appointed. In many cases, she voted with the majority, but wrote concurring opinions that sought to narrow the holding of the majority opinion. She crafted her opinions carefully to provide herself with flexibility in future cases. As time passed, her centrist vote increasingly aligned her with the court's more liberal justices.
In the aftermath of the 2000 presidential election, O'Connor voted with conservatives Rehnquist, Anthony Kennedy, Clarence Thomas, and Scalia to stop the Florida recount, in Bush v. Gore. O'Connor wrote the majority opinion in the 2003 case, Grutter v. Bollinger. The opinion supported the affirmative action program of the University of Michigan's law-school admissions program. Rehnquist, Thomas, Kennedy, and Scalia dissented in that case. However, in a 1989 case, Richmond v. J.A. Croson Co, O'Connor voted against a set-aside program for minority contractors.
In a 1984 case, Lynch v. Donnelly, O'Connor agreed with her conservative brethren that a city could construct a Nativity scene, but in 2005 in McCreary County v. ACLU, O'Connor voted for the removal of the Ten Commandments from two Kentucky courthouses.
The U.S. Supreme Court is the nation's highest judicial body. It leads the judiciary, the branch of government responsible for resolving legal disputes and interpreting laws on a case-by-case basis.
President George Washington (1732–1799; served 1789–97) appointed the entire membership of the first Supreme Court in 1789. His goal was to find balance, so he appointed three northern and three southern justices. The first meeting of the Supreme Court took place on February 1, 1790. This “first” version of the U.S. Supreme Court ended on March 5, 1791, when one of the justices, John Rutledge of South Carolina, resigned to serve as chief justice on the South Carolina court.
One of the most important bills the first Congress passed was known as the Judiciary Act of 1789. Washington signed this act into law in September 1789, thereby creating two types of courts: district courts and circuit courts. Each district court had one judge. These courts had the power to hold trials involving maritime law (laws governing private companies that operate ocean vessels) and minor federal crimes. District courts also held trials in minor civil (noncriminal) cases.
At the time, there were three circuits: eastern, middle, and southern. Each circuit was served by two Supreme Court justices and one district court judge. Circuit courts held trials in civil cases between citizens of different states, major civil cases filed by the United States, and cases involving major crimes. These courts also heard appeals from some trials in the district courts.
The Supreme Court has the power to hold trials in cases involving ambassadors, public ministers, consuls, and states. It also hears appeals in cases arising under the U.S. Constitution and federal laws and treaties, cases in which the United States is a party, and cases between citizens. In the 1890s the Supreme Court was granted the power to hear appeals in criminal cases as well.
The Judiciary Act gave the Supreme Court the power to hear appeals from the highest court of each state in cases involving interpretation of the federal Constitution. This was a controversial provision of the Judiciary Act because states objected to the idea that the Supreme Court could reverse their decisions. It remains one of the Supreme Court's powers in the twenty-first century.
Supreme Court through the years
The modern Supreme Court of the United States consists of a chief justice and eight associate justices who are nominated by the president of the United States and confirmed by the Senate. The Court meets in Washington, D.C. , in the Supreme Court building.
The longest serving chief justice was John Marshall (1755–1835), who presided over the Court for more than three decades (February 1801–July1835). The Marshall Court played a significant role in the establishment of America's legal system. In particular, it determined that the courts are entitled to the power to strike down laws they deem unconstitutional.
The Taney Court (1836–64), presided over by Roger Taney (1777– 1864), is most famous for its ruling in the Dred Scott case. The Court ruled that people of African descent, whether slaves or not, could never be citizens of the United States. It also declared that Congress had no authority to outlaw slavery in federal territories. Many historians agree that this controversial ruling helped lead to the Civil War (1861–65).
Earl Warren (1891–1974) served as Chief Justice from 1953 to 1969. His court made several rulings that became milestones in American judicial history. For example, it was the Warren Court that declared segregation in public schools unconstitutional (Brown v. Board of Education , 1954). This same court protected a citizen's general right to privacy in Griswold v. Connecticut in 1965 and upheld the right of the accused to retain a court-appointed attorney in the event they could not afford one (Gideon v. Wainwright, 1963). The Warren Court also prohibited mandatory Bible readings in public schools in the 1963 case Abington Township School District v. Schempp.
When Warren Burger (1907–1995), a conservative judge, became chief justice, many believed he would use his power to overturn some of the controversial decisions handed down by the Warren Court. He surprised the public and his colleagues by choosing not to do so. The Burger Court (1969–86) was responsible for one of the most controversial and significant decisions ever handed down. In 1973 the court ruled that abortion was a constitutional right. In the decades since the ruling, opponents of abortion rights have sought to overturn the decision, making Roe v. Wade a landmark case that continues to remain a political and social battleground. The Burger Court also upheld federal limits on political campaign contributions in Buckley v. Valeo (1976), and ruled that, though the death penalty was not unconstitutional (Gregg v. Georgia, 1976), the implementation of it in some states was (Furman v. Georgia, 1972).
The Rehnquist Court (1986–2005), under the leadership of Chief Justice William Rehnquist (1924–2005), may well be remembered for its 5 to 4 decision in Bush v. Gore. The presidential election of 2000 was fraught with voting problems in Florida. (See Voting Techniques Controversy of 2000 .) Some demanded a recount of ballots, but the Rehnquist Court held that no alternative method of recounting could be established within the required time limits. As a result, Republican George W. Bush (1946–; served 2001–) won the state's electoral votes and beat Democrat Al Gore (1948–). The court also limited the right of labor unions to picket (Lechmere Inc. v. National Labor Relations Board, 1972) and restricted the Roe v. Wade framework for determining abortion regulations in 1992.
John G. Roberts (1955–), considered a conservative, was appointed Chief Justice in September 2005. In its first three years the Roberts Court made rulings on free speech, the death penalty, school desegregation, and gun ownership among other matters.
Chief justices have indefinite tenure, meaning they can serve in that capacity until death. They do have the option to retire or resign, and a justice may be removed by impeachment (formal removal due to wrongdoing) or congressional vote. Samuel Chase (1741–1811) was the only chief justice ever to be impeached (1805), but he was acquitted by the Senate.
Associate justices also have the option to serve for life under the same circumstances as chief justices. Both positions are paid an annual salary. As of 2007 the chief justice was paid $212,100, and associate justices received $203,000.
Although all Supreme Court judges make valuable contributions to the legal process, some names stand out more than others for one reason or another. Associate Justice Sandra Day O'Connor (1930–) was the first woman to serve on the Supreme Court. She served from 1981 until her retirement in 2006. She earned a reputation as a thoughtful, dedicated judge who considered each case individually and avoided generalizations.
Another remarkable judge was Thurgood Marshall (1908–1993), who was the first African American to serve on the Supreme Court. He was an associate justice from 1967 until 1991. During his tenure he supported the protection of individual rights and abortion rights. He was unequivocally opposed to the death penalty and dissented from (voted against) every decision upholding the death sentence.
One of the most influential Supreme Court associate justices was Louis Brandeis (1856–1941). He was the first Jewish justice to serve, and his term lasted twenty-three years. Brandeis was a champion of individual rights. In Olmstead v. United States (1928), the Supreme Court ruled that neither the Fourth Amendment nor the Fifth Amendment rights of the defendants had been violated when evidence obtained by illegal wiretapping of conversations had been used to convict them of breaking the Volstead Act (prohibition of the manufacture, sale, and distribution of alcoholic beverages). Brandeis's dissenting opinion became famous for its demand that the United States government adhere to the same laws it enforces for private citizens. He contended that the Court's finding made itself the lawbreaker. His position became law in 1967, when the Olmstead decision was overturned.
U.S. Supreme Court (Rulings on Forensic Evidence)
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
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.
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.
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.
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.
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.
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.
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).
Supreme Court Sees First Major Changes in More Than a Decade
After years of speculation about possible nominees for positions on the U.S. Supreme Court that would likely become vacant, President George W. Bush in 2005 and 2006 appointed two new members, including a new chief justice. These appointments, which became necessary due to the retirement of Justice Sandra Day O'Connor and the death of Chief Justice William H. Rehnquist, left many questioning whether the Court would head in a new direction philosophically.
On July 1, 2005, O'Connor announced that she would step down after serving 24 years on the bench. Appointed by President Ronald Reagan in 1981 as the first woman justice, O'Connor had long been considered to be the key swing vote between conservative and liberal factions on the Court. Most significantly, she voted to uphold abortion rights in several key decisions in the 1990s and 2000s. She remained on the Court for part of the 2005–2006 term. O'Connor penned her final opinion in another abortion case, Ayotte v. Planned Parenthood of Northern New England, ____ U.S. ____, 126 S. Ct. 961, 163 L. Ed. 2d 812 (2006), where the Court unanimously invalidated a New Hampshire law requiring minors seeking abortions to notify their parents.
Almost two months after O'Connor's announcement, Rehnquist died at his home in Virginia. Rehnquist, who was 80 when he died, was the second oldest justice in history to lead the Court. Since assuming the position of chief justice in 1986, Rehnquist oversaw the Court's conservative shift. He also reduced the number of cases that the Court heard and demanded clearer and more strongly reasoned opinions. Rehnquist often aligned himself with Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas as part of the Court's conservative voting bloc.
After O'Connor's retirement announcement, about 10 names surfaced as possible replacements. Most of the potential nominees served as judges at federal appellate courts, with U.S. Attorney General Alberto Gonzales being the exception. The name that rose to the top of this list was John Roberts, a judge with the U.S. Court of Appeals for the D.C. Circuit. Roberts received his law degree from Harvard Law School in 1979. After clerking at a federal appeals court, he became a clerk for Rehnquist, who then served as an associate justice. He argued before the Supreme Court on numerous occasions, both as a deputy solicitor general and as a private practitioner.
Roberts became the leading candidate to become the new chief justice after Rehnquist's death. During confirmation hearings held in September, members of the Senate Judiciary Committee asked Roberts a number of questions about how he would vote on certain issues. He repeatedly declined, saying that he could not comment on potential issues or questions that might come before the Court. Although some Democrats complained that he did not answer their questions adequately, the Senate confirmed his nomination by a vote of 78 to 22. He was sworn in on September 29.
Naming O'Connor's replacement proved to be more challenging for Bush. Many commentators expected Bush to replace O'Connor with another female, possibly a minority woman. During the first week of October, Bush surprised many by announcing the nomination of presidential counsel Harriet Miers. The decision was reportedly based in large part to Miers' loyalty to the president, as well as to her conservative views. Although some officials nodded their approval informally, her nomination met significant resistance from others. Critics accused Bush of cronyism, while some Republicans said that they wanted assurances that the nominee would remain true to their conservative ideologies.
Many questioned Miers background for the position as a justice on the Court. She spent much of her career as a corporate lawyer, and critics doubted that she could perform nearly as well as Roberts during the public confirmation process. She also had no experience as a judge, and while this type of experience is not an absolute requirement, commentators noted that she would have difficulty answering some questions during the hearings. The last Supreme Court justice to be appointed without prior judicial experience was Lewis F. Powell Jr., who was appointed by President Richard Nixon in 1972.
In less than a month, Miers withdrew as a nominee. Members of the Senate said that they intended to request documents about Miers' service in the White House in order to ascertain her judicial philosophy. Miers cited these requests as part of her reasons for her withdrawal. "Repeatedly in the courts of the process of confirmation for nominees for other positions, I have steadfastly maintained that the independence of the Executive Branch be preserved and its confidential documents and information not be released to further a confirmation process," she wrote in her letter of withdrawal to Bush. "I feel compelled to adhere to this position, especially related to my own nomination. Protection of the prerogatives of the Executive Branch and continued pursuit of my conformation are in tension. I have decided that seeking my confirmation should yield."
Bush next turned to Samuel A. Alito Jr., who served as a judge with the U.S. Court of Appeals for the Third Circuit since 1990. A graduate of Yale Law School, Alito drew comparisons with Scalia, not only because both are Italian-American, but also because Alito has often voted conservatively in the past. Although analysis of opinions written by Scalia and Alito showed a number of differences in their judicial approaches, many liberals expressed concerns about the nomination's potential to shift the focus on the Court even further to the right.
Some Democrats threatened to filibuster Alito's nomination, due largely to objections to the judge's position on abortion. Many pro-choice advocates believed that Alito's appointment would signify the end to abortion rights under Roe v. Wade. Although the effort to filibuster the vote fell through, the final vote in the Senate was clearly partisan, with Alito receiving the confirmation by a vote of 58 to 42.
After Alito was sworn in, several Democrats said that Bush's nominations would haunt him in the November elections in 2006. The Court's three youngest members, including Roberts, Alito, and Thomas, are conservatives. The two oldest judges, Ruth Bader Ginsburg (72) and John Paul Stevens (85), are both liberals. Conservative groups applauded the appointments and said that they were historic victories for their causes.
Commentators noted that the appointments of two conservatives likely meant that Kennedy's vote would become the most crucial. In the past, the Court was generally viewed to have four liberals and three conservatives, with two swing votes of O'Connor and Kennedy. With Alito joining the Court, commentators expect that Kennedy will remain the only moderate member on the bench.