Guideposts for Thinking and Discussion: General Overview
The Relationship of the Supreme Court to the Constitution
American citizens live in a nation governed by laws. We accept this as a fact of life. But where do these laws come from, and why do we respect them and abide by them? Much of the answer rests on three profoundly important facts: (1) the laws that govern us stem from the elected representatives of the people and not from religious leaders, or kings, or powers that are beyond the control of the people; (2) we accept these laws because we know that they must conform to a written Constitution of the United States that is the fundamental law of the nation; and (3) both Congress and the President as well as the nation's citizens look to the Supreme Court for making sure that our laws and the actions of the government conform to the Constitution.
The nation's Supreme Court is a court of last resort, which ideally functions above politics and stands independent of both Congress and the Executive of the nation. It does not rule on every law that is passed or action that is taken by legislators and government officials but only when citizens bring the issue to the Court's attention. An aggrieved person, in other words, challenges a law or action because of a specific and concrete harm done personally to him or her. If the Supreme Court thinks that the issue involves an unsettled question about the constitutionality of the law, they will hear the case and make a judgment.
Also at issue is the role of the Court in viewing the Constitution as empowering the branches of government to promote justice, equality, and equity for all of the nation's citizens. In pursuing this goal, the Court has rejected, and upheld, laws and actions that undermine, or advance, the general welfare of the nation even though these laws are not grounded specifically in the language of the Constitution. Although large segments of the population may disapprove of specific rulings in such cases, the public has viewed the Court historically with respect and even reverence. It is the most trusted of the three branches of government.
The Court is a battlefield whereon ordinary people struggle to obtain justice.
Each landmark case decided by the Supreme Court is the result of a battle fought by relatively powerless people crying out for the protection of the Constitution. And these individuals did not always win. Dred Scott did not win his freedom as an enslaved person. The mixed-race Homer Plessy did not win the right to sit on public trains and streetcars anywhere he wanted equally with whites. Farmers did not win at first the right to regulate the rates charged them by railroads. Women did not win the right to vote until the nation passed a constitutional amendment granting them suffrage. Americans of Japanese-American ancestry were not freed from their concentration camps during World War II. Workers in the 1930s did not win Court approval of laws designed to prevent their exploitation by "unscrupulous" employers.
But it is amazing how frequently ordinary people have won, if not immediately then in time. In the long history of the Court, the battles lost come back to be fought again and again, and often the Court overturns past decisions on the basis of new information, new circumstances, and new or different arguments. African-American parents battled in the courts to outlaw segregation, and eventually they won. Low-paid workers fought to receive minimum wages, and eventually they won. People accused of crimes fought to have the right to a lawyer when defending themselves, and eventually they won. Women fought to have the right to choose to have an abortion, and eventually they won.
The Supreme Court is a historic institution with a past that explains what it is today, how it functions and operates, and to what impact.
What the Court does, and how it does it, is the result of a contentious and exciting history that is very much alive and changing even today. For Americans, this history began perhaps with the assertion of the authority of law over Kings in 1608 when Sir Edward Coke boldly confronted James I with the treasonous assertion that the King was not above the law. This verbal opinion to the King, which almost cost Coke his head, was used by the founders of our nation to justify both the American Revolution and the establishment of the American Constitution as the fundamental law of the land. Over time, the Supreme Court has embraced this concept of Judicial Review in a series of dramatic courtroom battles that have planted deeply into the nation's very character and system of values the belief that judges can review actions by lawmakers, citizens, generals, governors, and even presidents to make sure that they do not violate the fundamental law of the land.
The Supreme Court thrives on history and respect for previous decisions.
The Court is an institution that has evolved over time with a set of procedures, traditions, rituals, and ways of operating that are essential components of both its character and its authority. Every aspect of what the Court does, and how it does it, is a result of historical developments, many of which were hard-fought victories. Its deliberations after hearing testimony are in sealed chambers that are filled with ritual even as to who sits where. As the Court evolved, virtually everything was a hotly debated issue: whether to wear robes and wigs, how many clerks and aids Justices should have, and whether they should be youngsters or law students, men or women; even whether to use spittoons as judicial wastebaskets rather than just discarding them when the practice of chewing tobacco went out of fashion. These debates, even the apparently trivial ones, tell us much about the weight placed upon the historical fabric in safeguarding the authority and validity of the Court as an institution.
The Court is a living institution that is extraordinarily mindful of its past. It is an institution that values precedent not only in reaching legal decisions but also in how it conducts itself as a body of men and women charged with perhaps the most awesome responsibility ever given to people in authority. Nothing about the Court is taken lightly, and its rituals and symbols, even the building in which it resides and does its business, are important components of the Court's stature in the nation.
For some justices, the issue of precedent is the overriding dictum that enables them to see their way clearly through conflicting issues. In the mind of the moderately conservative Associate Justice John Marshall Harlan, justice was best served when individual Justices followed precedent as much a possible. This approach holds that once the Court has laid down a principle of law it must not be overturned easily – only when the facts have substantially changed or when the principle has been found to be unworkable. This concept of respecting precedent is know as the doctrine of Stare Decisis, which is the Latin phrase meaning ‘let the decision stand."
Surprisingly, the Court has reversed its own rulings several hundred times over its history. There were only 9 reversals in the first 60 years of the nation's history but many more thereafter. Some of these reversals came about because of changes in the Constitution that made earlier rulings invalid, such as the question of a federal income tax, which the Court had disallowed in 1895. The Sixteenth Amendment in 1916 forced the Court to change its opinions thereafter on this matter.
In the years from 1937 to 1953, the Court dramatically shifted from protecting property rights to protecting the rights of individuals, overturning in the process dozens of its previous rulings. In one of the most important reversals, the Warren Court in 1954 overruled Plessy v. Ferguson (1896), and outlawed racial segregation in public schools. Some fifteen decisions in the 1960s also overruled earlier decisions, most notably the right of state prisoners to be protected from self-incrimination, limits on search and seizure by police, the use of wiretapping, reapportionment of congressional districts, and the scope of state sedition laws.
In the years of the Burger Court (Warren E. Burger), over 50 precedents were overturned. The cases ranged from upholding federal protection for minimum wage workers for state employees to weakening the right of alleged criminals from challenging search and seizure practices by police. Other reversals allowed cities to be sued in federal courts for violating civil rights, protected commercial speech, upheld the right of women to serve on juries, and upheld capital punishment by states.
During the years when Chief Justice William H. Rehnquist headed the Court, it reversed close to 40 earlier decisions in 18 years. Some of the more controversial reversals allowed federal funds to be used to pay for services at parochial schools and eased the rules limiting the search of automobiles by police and the use of racial classifications to award government contracts.
The Supreme Court is an institution that is beyond the reach of ordinary people but not above politics.
No judge is elected or is held accountable to an electorate. Supreme Court Justices, moreover, are appointed for life. The founders of the nation saw these measures as making the Court independent of powerful presidents and political parties, and as a means of distancing the Court from the popular opinions and passions of the day. But it was not always clear that such an undemocratic institution was in the best interests of democracy itself, and the Court did not always stand secure in its posture of independence. Powerful presidents often tried to influence the Court to doing their bidding. Sometimes this worked, and sometimes it did not work. Lincoln practically ignored the Court during the Civil War, and FDR tried to stack it with Justices who would support his political agenda. Other politicians have led campaigns to impeach individual justices or to punish the Court by hampering its operations in one-way or another. The role politics plays in appointing the Justices of the Court – an issue that is very much is on the political front burner today – is an old story, not a new one.
History has shown, moreover, that while most Justices have avoided engaging directly in politics by making speeches or writing political books and articles, few are above being influenced by the politics of the day. When the Court so dramatically reversed its position on the role of the federal government in the 1930s, observers saw a link between its new opinions and the political pressure being applied by FDR. Similar criticism has been aimed at the Court's decision in the presidential election of 2000, when a Court majority ruled to stop the voter recount in Florida and give the election to the Republican candidate—a man who favored their position by and large and who had promised to appoint Justices like them if elected.
It is a fact of the Court's history that it operates within a political context. Each judge is appointed and confirmed in the hope that he or she will favor a particular political perspective held by the president and the confirming Senators. This means that the Court's decisions have tremendous political implications and consequences. The Marshall Court not only established guiding principles that strengthened the Court's independence and authority but also strengthened a political perspective that was out of touch with the Jeffersonian mainstream for much of its tenure. The Taney Court sided forcefully with those who favored slavery and state's rights. The Court ruled in 1901, after the Spanish American War, that the Constitution, in the words of Mr. Dooley, the political satirist, "don't follow th' flag." This was in reference to the question of extending constitutional rights and protections to people in territories conquered by the US. Dooley's wit sounded funny in 1901, but the precedent established holds today in territories conquered by the US military overseas. Chief Justice Charles Evans Hughes presided over a Supreme Court in the 1930s that both nullified the most important legislation of the Roosevelt presidency aimed at ending the Great Depression and then reversed itself to uphold the regulatory authority of federal and state legislation as constitutional.
But as history has demonstrated that Justices do not always behave in the way they are expected on the basis of their records. FDR appointed his friend and supporter Felix Frankfurter in the hopes that he would be a "progressive" jurist only to find him the leader of the Court's conservative minority. The Court headed by Eisenhower's "conservative" appointment, Earl Warren, struck down segregation, and Warren became one of the most "activist" of all Chief Justices. Richard Nixon's appointee, Chief Justice Warren Burger, led the Court that forced President Nixon to release the Watergate tapes, outlawed busing as a means of segregating schools, and upheld abortion as a woman's constitutional right to privacy. These decisions met with political derision as well as popular acclaim, depending on one's political opinion, and created hot-button issues that, in some cases, continue to arouse controversy today.
In many of its landmark cases, the Court's decisions were both a product of their times and also ahead of their times. No clear majority of the voters in the nation has ever elected presidents or legislators strictly with Court's decisions in mind, although decisions like Plessy, Brown, and Roe, for example, mobilized voter participation and probably determined the outcome of elections. It might be argued that the long range impact of the Court results from the degree that it is in step, out of step, or a step ahead of the political fervor of the times. It is almost a truism to say that the character of the Supreme Court at any one time in its history is a mixture of politics, process, and principles.
Fundamental principles
From the first days of the nation, the Justices of the Supreme Court have thought in terms of the Court's power and its purpose. Over time, two questions have engaged the Court's attention more than perhaps any other. The first has to do with the role of the Court in overseeing the actions of lawmakers, including the president, in terms of the Constitution. The second is the issue of the Court as the protector and promoter of various ideals, such as equal justice under the law. As in most matters of law and the Supreme Court, the two questions are not totally separate. Many other issues of principle have also engaged the Court, most of which stem from or support the two above in various ways.
At the heart of the first question is the issue of empowering the Court to use the Constitution to validate or nullify legislation. Once the issue of judicial review was established and generally accepted, largely due to the actions of the Court under Chief Justice John Marshall, the Court then had to decide on what basis it would engage laws and the actions of governmental bodies at any level. In general, the Court approached this question by trying to figure out what the Constitution allows or empowers legislators to do. This means it has to determine the nature of the Constitution. What is it? How do we know what it is? How flexible is it as an instrument upon which judgments can be based?
If the Court defers to the actions of the President, Congress, and the states, it is practicing "judicial restraint." In these cases, the Court refrains from substituting its view for those of other government bodies. Such restraint can open the way, moreover, to "progressive" legislation or actions by Congress, the President, or the states that will not be overturned by the Supreme Court. The Supreme Court practiced such restraint from 1937 through the 1960s when it allowed actions by the federal government in support of New Deal and Fair Deal programs of Presidents Roosevelt and Truman to be put in place without significant challenge.
The same principle of judicial restraint can be used, however, to maintain the status quo and thus support "conservative" goals. This is done in two ways: first, by not overturning conservative legislation, the status quo is maintained; and secondly, the Court can refrain from requiring legislative remedy in areas where Congress, the President, or the states have refused to act, such as the legalization of abortion. If no government body acts, including the Court, then the status quo is maintained.
Sometimes the same Court will practice judicial restraint in one area and "judicial activism" in another area. In the late 1930s, for example, the Court refrained from interfering with laws passed by Congress to regulate the economy. At the same time, the Court acted aggressively to protect individual rights against violations by the other branches of government. Almost all of the Court's most important decisions deal directly or indirectly with this question of judicial restraint.
The question of justice and equity relates directly to the thorny issue of a Justice's individual conscience in making a decision. Can a Justice rule unconstitutional a state law or government action, for example, that he/she believes is morally wrong but in accordance with the Constitution? Obviously, Justices cannot rule on the basis of their individual opinions of morality. They must render judgments in light of the Constitution. This does not mean, however, that Justices who want to overturn laws that they find morally repugnant have no power to do so. They can base their moral judgments on constitutional violations, such as due process, discriminatory treatment, arbitrary actions by authorities, the disparate or singular impact of laws that are "facially neutral," and resource inequalities associated with a specific class, gender, or racial group. More importantly, they can define the Constitution has empowering legislators and the courts to act in ways that obtain the general welfare even if these means are not specifically mentioned in the Constitution.
Although it is likely, for example, that the majority of the Warren Court found segregation morally wrong, they ruled against segregation because it violated the Constitution not because it was morally wrong. They found that segregation deprived blacks of the equal protection of the laws as guaranteed by the Fourteenth Amendment. Another way of looking at this is to say that until the Court's Justices found segregation morally wrong, no case was made successfully against the laws that upheld segregation. One might add, of course, that more was involved than the immorality of segregation in the opinion of the Court. There was also the question of what was in the best interests of the nation, a question that is always of uppermost concern for the Court.
The Justices of the Supreme Court: Mere Mortals or Gods?
In a separate opinion in 1992, concurring with the majority in a review of the right of women to abortion, Justice Blackman said the following: "I am 83 years old. I cannot remain on this Court forever, and when I do step down ... the choice between two worlds will be made." He understood that the Court's decisions have far-reaching consequences, possibly equal in importance to presidential decisions and congressional acts. And he also understood that the Court is composed of men and women of diverse temperaments and abilities. Each Court is known by the name of its Chief Justice, and this person and the Associate Justices who serve with him or her have contributed style, leadership, and thinking. They are worthy of study as individuals and as thinkers whose opinions have had the potential to change America or preserve the status quo. Some Justices were of little consequence while others have been giants. All of them, however, played key roles in forming majority and minority opinions. They can be studied by thinking of them as champions of principles, issues, positions, and ideas. Who were they? What did they do that mattered? And how does history judge them?