In the US Constitution, Article I laid out the powers and responsibilities of Congress, while Article II laid out the powers and responsibilities of the president. Millions of Americans regularly go to the polls to vote for both of these candidates. But what about the federal courts? This third branch of government, which received little guidance from Article III of the Constitution, is the least familiar to most citizens. Article III simply stated that there would be a Supreme Court, which was to be the highest court of appeals in the land. But what did that mean? Even today, the operations of the US Supreme Court are a mystery to most common citizens.
Setting the Stage: An Independent Judiciary
In January 1776, only months after the American Revolutionary War began, political philosopher Thomas Paine wrote in his popular pamphlet Common Sense, which advocated for independence from Britain, that “the law is king.” Paine contrasted this supremacy of law against Britain and other European monarchies, where the king was above the law. Thus, Paine put forth an important concept in democratic thought: a declaration that nobody, not even the king or president, is above the law (and, therefore, must follow the law). This was key to the larger concept of an independent judiciary, or system of courts.
In Britain and other monarchies, the courts were not independent from other branches of government. During the Middle Ages, Parliament itself served as an appeals court, and nobles could only be judged by fellow nobles for alleged crimes. Only in 2009 did Britain finally create a separate Supreme Court! Because legislators served as judges, they had an incentive to maintain the favor of the king and the public, resulting in biased decisions. Having elected judges today at the local and state levels in the United States remains controversial for the same reason: potential bias in favor of voters and campaign donors.
Setting the Stage: Article III of the US Constitution
Paine’s desire for an independent judiciary, which could hold all persons accountable for alleged crimes regardless of their status in society, was realized in Article III of the US Constitution. Sections 1 and 2 (out of 3 total) include information on the Supreme Court and other inferior courts that would be created for the federal government. These federal judges would be appointed by the president, confirmed by the Senate, and serve life terms. In addition to life terms, these judges were protected from political pressure through the protection of their salaries during their term – an angry president or Congress could not reduce their pay.
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Section 2 outlined what types of cases would be heard by federal courts as opposed to state courts. At the time, the Supreme Court would have original jurisdiction, meaning trial jurisdiction, over a handful of obscure types of cases (such as those dealing with ambassadors), but the vast majority would be appeals. Today, almost the entirety of the Supreme Court’s caseload comes from its appellate jurisdiction or hearing appeals. These can come from both federal circuit courts of appeal and state supreme courts. Most of this had to be outlined in later federal laws, as the US Constitution gave few specifics on what any of the above actually meant!
Marbury v. Madison (1803) and Judicial Review
Most people are familiar with the Supreme Court’s ability to strike down, or nullify, a law or executive order. However, this power was not written into the US Constitution. The modern concept of judicial review was not created until the famous decision in Marbury v. Madison (1803). Previously, judicial review had occurred, but the Supreme Court had always ruled in favor of the government. Some jurists, including Supreme Court Chief Justice John Marshall, worried that Congress and the President might try to remove the powers of the Court.
The famous case involved William Marbury suing Secretary of State James Madison, who had canceled his judicial appointment at the last second. Marbury used a federal law to appeal his case directly to the Supreme Court. The Supreme Court, under the guidance of Chief Justice Marshall, ruled against Marbury by declaring the law he used – the 1789 Judiciary Act – unconstitutional. Because Marbury “lost” the appeal, Secretary of State James Madison and President Thomas Jefferson were not upset. Thus, the Supreme Court had successfully established the precedent of being able to rule a law or executive order null and void.
The Marshall Court: Expanding Central Government Power
In addition to his legal brilliance in Marbury v. Madison (1803) and establishing modern judicial review, Chief Justice John Marshall served in his role for a still-record 34 years, from 1801 to 1835. During Marshall’s tenure, the Supreme Court drastically expanded the federal government’s power. Two critical decisions under Marshall reinforced the power of the federal government and allowed it to adapt to the changing times: McCulloch v. Maryland (1819) and Gibbons v. Ogden (1824).
McCulloch was a case involving the state of Maryland trying to tax the federal government’s central bank, The Second Bank of the United States. Maryland argued that the central bank was unconstitutional because the US Constitution did not explicitly mention such a bank. The Marshall Court (Supreme Court under the leadership of John Marshall) ruled that Congress had the ability to create a central bank under the concept of implied powers. Gibbons saw the Marshall Court confirm that Congress had the right to regulate commerce among all the states, defining interstate commerce. Today, virtually all commerce is considered interstate, meaning it crosses state lines.
Dred Scott Decision vs. 14th Amendment
After the Marshall era, the federal government increasingly dealt with a new political challenge: slavery. To preserve the union, the government tried to maintain a rough balance of power in Congress – at least in the Senate – between “slave states” in the South and “free states” in the North and West. This continuing balance of power frustrated abolitionists who wanted to abolish slavery. With senators from slave states able to block bills to abolish slavery, reformers looked to another route to limit slavery: the Supreme Court and judicial review.
Unfortunately, in the Dred Scott v. Sandford (1857) decision, the Supreme Court upheld slavery as constitutional. It ruled that Dred Scott, as an enslaved person, was not a citizen and thus lacked standing to sue for his freedom in court. Thus, slavery continued in the United States and was only eliminated by force through the Union’s victory over the Confederacy in the American Civil War (1861-65). After the end of the war and slavery (commemorated by the Juneteenth federal holiday), the Fourteenth Amendment to the US Constitution rendered the Dred Scott decision null and void by making all formerly enslaved people citizens. A Supreme Court ruling cannot contradict the Constitution; adding the Fourteenth Amendment made Dred Scott a citizen and reversed the Court’s 1857 ruling.
The US Supreme Court Building is Completed
Although Congress has the Capitol building and the President has the White House, the third branch of government did not have its own building until 1935. From 1800 to 1935, the Supreme Court actually shared space with Congress. In 1929, current Chief Justice and former US President William Howard Taft convinced Congress to allocate spending for a US Supreme Court Building. Three years later, during the Great Depression, construction began on the headquarters for the third branch of government. Sadly, neither Taft nor the building’s architect, Cass Gilbert, lived to see the building completed in October 1935.
Like both the Capitol and the White House (aside from the president’s residence), the Supreme Court Building is open to the public and accommodates many visitors. Also, like both other branches of government headquarters, the Supreme Court Building has its own protective police force – the Supreme Court Police Department, complementing the Capitol Police and the White House’s Secret Service Uniformed Division. The Building contains four courtrooms, a vast law library, and many offices. To avoid the Supreme Court being seen as subordinate to either of the other branches of government, a new location was chosen not directly across from either the Capitol or the White House. At One First Street NE, the Supreme Court Building is directly east of the Capitol and north of the Library of Congress.
Franklin D. Roosevelt & Court Packing
Many Americans assume that the numbers of US representatives (435), US senators (100), and Supreme Court justices (9) are set in stone, fixed by the US Constitution. However, these numbers are not actually bound by the Constitution and have changed over time. Just like the House of Representatives expanded in size between 1789 and the 1920s and the Senate between 1789 and 1959, the Supreme Court grew in size between 1801 and 1863. In 1869, the Court settled on its current size of nine justices. However, a simple federal law can change the number of justices (or federal judges on any federal court).
In 1937, President Franklin D. Roosevelt (FDR) courted controversy by proposing a plan to expand the number of Supreme Court justices. This court-packing plan, as critics called it, was an attempt to liberalize the Court, whose conservative majority was overturning several pro-liberal New Deal reforms. Under FDR’s proposal, he would be able to add up to six new justices – whom he would nominate and a Democrat-controlled Senate would confirm. Despite FDR’s tremendous popularity, even many supporters balked at his proposal, and the president was forced to drop it. Many Americans mistakenly believed that what the president was trying to do was unconstitutional, and to this day, the idea of expanding the number of justices on the Supreme Court remains highly controversial.
The Supreme Court & the Civil Rights Movement
Similar to the abolition movement in the 1850s, the Civil Rights Movement in the early 1950s was struggling due to Southern legislators’ refusal to accept civil rights legislation in both state legislatures and in Congress. Unable to make headway with politicians in the South, the National Association for the Advancement of Colored People (NAACP) sued the Board of Education of Topeka, Kansas on the grounds that racial segregation in public schools was inherently unequal and thus in violation of the US Constitution. The Supreme Court had previously upheld states’ racial segregation in public accommodations in the 1896 Plessy v. Ferguson decision.
In one of its most famous decisions, the Supreme Court reversed its Plessy decision in 1954 with its unanimous (9-0) ruling in Brown v. Board of Education. Citing the Fourteenth Amendment’s equal protection clause, the Court agreed that segregation on the basis of race was inherently unequal and thus unconstitutional. This landmark decision was a groundbreaking moment in the Civil Rights Movement. The Court followed up Brown v. Board with other decisions that supported civil rights, such as lawsuits to integrate interstate busing. This was the Warren Court era of liberal decisions under Chief Justice Earl Warren, who presided from 1953 to 1969.
Post-Civil Rights Era Return to Conservatism
While the Warren Court drastically expanded civil rights and civil liberties (freedoms granted under the Bill of Rights) in the 1950s and 1960s, the Supreme Court became more conservative again under Chief Justice Warren Burger. The Burger Court oversaw a relative backlash to Civil Rights Movement victories with its 1978 decision in Bakke v. California. By limiting affirmative action through a ban on race and gender quotas, the Bakke decision is sometimes considered the end of the Civil Rights Movement, capping a run of reforms that began in 1948 when President Harry S. Truman integrated the armed forces.
Since 2020, the Supreme Court has had a conservative supermajority (any majority greater than half plus one), with six of the nine justices appointed by Republican presidents. This has given a public policy advantage to conservatives, which was capstoned in 2022 with the Supreme Court ruling in Dobbs v. Jackson Women’s Health Organization. This monumental decision by the conservative Court overturned the 1973 landmark decision in Roe v. Wade, which prevented states from banning abortion. Thus, both Roe and Dobbs have become the most controversial Supreme Court rulings since the American Civil War.
Modern Era & Ethical Debates Over Judicial Independence
Recent allegations of unethical behavior by Supreme Court justices have renewed debates over proper oversight of the highest court in the nation. Although the US Constitution allows for federal judges to be impeached, this is a partisan exercise that many feel is too weak to provide accountability. Aside from impeachment, which requires a two-thirds majority vote in the US Senate to convict and remove from office, there exists no other formal check on the misbehavior of a federal judge. Critics have called for legislation to force more accountability for these judges.
A primary ethical concern regarding the Supreme Court is the possibility that justices are beholden to “special interests” (interest groups), potentially due to financial favors. Wealthy interest group members who file amicus curiae briefs to lobby federal courts may offer favors to Supreme Court justices or their families to win favor. Although justices are expected to recuse themselves from hearing appeals where they have a vested interest, such as investments in a corporation appearing before the Court, this is largely voluntary. Allegedly, multiple Supreme Court justices who are still “on the bench” today have failed to recuse themselves from cases where they were likely to be somewhat biased in favor of one party.