The U.S. Supreme Court in History and Today

Nancy Salvato

The U.S. Supreme Court, with its nine black-draped justices, is at the pinnacle of America's third branch of government. It wields immense power, but has sometimes stumbled badly in exercising its influence.

According to Article III, Section 2, of the U.S. Constitution, "Judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution ..." The Supreme Court can hear some cases directly (original jurisdiction) and some only when they're appealed (appellate jurisdiction). The meaning of jurisdiction is to interpret the law; therefore, it is up to the Supreme Court to interpret federal law.

Some have interpreted jurisdiction to mean that the Supreme Court has the power of judicial review, which allows it to declare acts of the president or Congress unconstitutional. This notion has been around since the time the U.S. Constitution was written. According to Alexander Hamilton, in Federalist 78,

"By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex post facto laws, and the like. Limitations of this kind can be preserved in practice no other than through the medium of the courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing…"

In 1803, the court assumed the power of judicial review in Marbury v. Madison, when Chief Justice John Marshall and his court declared that Congress could not amend the original jurisdiction of the Supreme Court without amending the Constitution.

Another way the court has expanded its influence on public policy is through broadly interpreting the "commerce clause" of the Constitution. This began with Gibbons v. Ogden (1824), when Marshall said regulating commerce included regulating the transportation of goods, not just the buying and selling of goods.

The court continued to redefine the power to regulate commerce to include a potpourri of commercial activities over which the federal government expanded its reach. In 1905, as a result of Swift and Co. v. United States, the "stream of commerce" doctrine extended regulatory control over meatpacking to the federal government by allowing Congress to regulate at any point along the "stream".

In Heart of Atlanta Motel v. United States (1964), it was ruled within the law to regulate a privately owned accommodation, because it used national advertising to solicit out of state customers and provide accommodations to them. This ruling helped to enforce the Civil Rights Act of 1964, which prohibited discrimination in public accommodations involved in interstate commerce.

Sometimes the courts put up roadblocks to the implementation of progressive public policy by narrowly interpreting the Constitution. The Fourteenth Amendment, passed in 1868, restricted state governments from depriving individuals of their civil rights and liberties. In the Slaughterhouse Cases (1873), Justice Miller narrowly interpreted the Fourteenth Amendment's "privileges and immunities clause" by saying that property and labor weren't included in the fundamental rights. He said that these rights were subject to state regulation for the good of the community. This left it up to the Southern states to protect the basic rights of newly freed black people.

The Civil War amendments were passed to abolish slavery and secure equal rights. However, the courts did not enforce these rights based on what we would consider today as basic human rights principles. They were to prove themselves not infallible for over a half-century; first striking down the Civil Rights Act of 1875 by ruling that the Fourteenth Amendment did not give Congress authority to prevent discrimination by private individuals. States began segregating most public facilities, and victims were subject to state jurisdiction. In 1887, states began requiring separate accommodations on railroads. Railway companies did not like the extra cost of adding "Jim Crow" cars.

The Citizens' Committee to Test the Constitutionality of the Separate Car Law decided to test the constitutionality of forced segregation in railroad cars traveling between states. In 1892, the Supreme Court decided this law was unconstitutional when applied to interstate travel. The committee, now calling itself the Citizens Committee to Test the Constitutionality of the Separate Car Law in Louisiana, had Homer Plessy (who was one-eighth black) take a seat in the whites-only area. Plessy informed the conductor that he was black and the conductor had him arrested. The Louisiana District Court ruled that a state had the constitutional power to regulate railroad companies operating solely within its borders, concluding that the Louisiana Separate Car Act was constitutional. The decision was appealed to the state Supreme Court in 1893 and was appealed again to the U.S. Supreme Court in 1896.

At the Supreme Court, Plessy's lawyer argued that he was denied his equal protection rights under the Fourteenth Amendment and that the law violated the Thirteenth Amendment by perpetuating the essential features of slavery.

Supreme Court Justice Henry Billings Brown, speaking for the majority, wasn't convinced. "If the civil and political rights of both races be equal, one cannot be inferior to the other civilly or politically. If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane." Enforced separation treated both blacks and whites equally under the law because whites were forbidden to sit in black railroad cars. The lone dissenter, John Marshall Harlan, argued that "everyone knows that the statute in question had its origin in the purpose, not so much to exclude white persons from railroad cars occupied by blacks, as to exclude colored people from coaches occupied by or assigned to white persons."

Jim Crow segregation laws remained for almost sixty years. In 1954, the Supreme Court ruled that "separate but equal" facilities violated the Constitution in the case of Brown v. Board of Education of Topeka. "Segregation of white and colored children in public schools has a detrimental effect upon colored children. The impact is greater when it is the sanction of the law; for the policy of separating the races is usually interpreted as denoting inferiority of the the Negro group. A sense of inferiority affects the motivation of the child to learn. ...We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

Prior to its passage, our federal Bill of Rights only applied to the federal government. But due process, written into the Fourteenth Amendment, was used to incorporate similar rights to be protected by the states--rights that reflected fundamental principles of liberty or were considered inalienable. Freedom of speech and press were among the first rights to be incorporated, beginning with Gitlow v. New York (1925). Other rights have been incorporated on a case by case basis. Amendments Two and Three and portions of Amendments Five, Seven, and Eight stand out as not having been applicable to state government.

There have been many controversial rulings made by the court. Some that particularly stand out are based on penumbra--implied protection, reach, application, or consideration derived from explicitly enumerated rights spelled out in the U.S. Constitution. For example, in Griswold v. Connecticut (1965), there is an idea that the First Amendment has a penumbra of privacy which is protected from governmental intrusion. This right to privacy was later used to support the right to an abortion in Roe v. Wade (1973).

The "establishment clause" prohibits the government from creating an official religion or giving preferential treatment to one religious group. The "free exercise clause" prohibits the government from interfering with religious expression. Nowhere does the Constitution say that there is to be a wall of separation between church and state. However, in 2002, there was a huge conservative backlash played out on the Internet over the ordered removal of Alabama Supreme Court Chief Justice Moore's Ten Commandments monument in the Alabama state courts building because of its alleged government endorsement of religion. Since then, many more lawsuits have been filed by the American Civil Liberties Union and Americans United for Separation of Church and State to remove such displays.

In Stanford v. Kentucky (1989), it was decided that individual states would decide whether or not to use capital punishment with seventeen- or sixteen-year-olds. Based on foreign law and the majority consensus to abolish juvenile capital punishment in thirty-two states, however, it was determined in Roper v. Simmons (2004) that it was cruel and unusual punishment to execute a juvenile under age eighteen. This ruling ignores that the power to write law belongs to the legislative branch of the government. In reaction to the use of foreign law to make their argument, Florida Rep. Tom Feeney introduced a nonbinding resolution instructing the judiciary to ignore foreign precedent when making their rulings. By citing foreign law they may be subject to impeachment.

Probably the most controversial ruling in recent days is Kelo v. New London (2005). A 5-4 majority of the Supreme Court supported the opinion of the Connecticut Supreme Court that,

The use of eminent domain for economic development [the central focus of the case] did not violate the public use clauses of the state and federal constitutions. If an economic project creates new jobs, increases tax and other city revenues, and revitalizes a depressed (even if not blighted) urban area, it qualifies as a public use. The court also found that government delegation of eminent domain power to a private entity was also constitutional as long as the private entity served as the legally authorized agent of the government. (Wikipedia)

There are serious implications to this decision, not the least of which that property owners can no longer be secure in the knowledge that their home is their castle.

The court is supposed to be independent of political influence. However, it can be argued that many have tried and succeeded in influencing court decisions. The most blatant example of overt influence is Franklin D Roosevelt's court-packing scheme of 1937. He wanted to add six additional justices to the court who would be favorable to his New Deal reforms, because the members of the court kept striking down his programs as unconstitutional.

Roosevelt had the votes needed to pass his Judicial Reorganization Bill. However, one of the court members began voting for Roosevelt's New Deal programs. Newspapers reported the reversal as, "The switch in time that saved nine." Another justice retired, and Roosevelt was given the opportunity to nominate a judge who embodied his views. The momentum for the bill declined. In 1948, a law was passed that set the number of the Supreme Court members at nine.

Charges of judicial activism are leveled when judges interpret the meaning of the law to advance a political agenda--which can greatly affect public policy. In his article, "Invoking the Clinton Precedent" (Los Angeles Times), Ronald Cass wrote:

Much of the liberal political agenda that could not muster support at the polls has been achieved through the courts. Would voters sanction government taking private property from one person to give to another? Would they approve banning the Pledge of Allegiance as an unconstitutional intrusion of God into our public life?

Unless courts keep altering legal rules to facilitate liberal causes, Democrats label judges conservative activists, and view anyone who supports them as wanting to take us back to the days of segregated lunch counters and back-alley abortions. It's a mantra that worked against Robert Bork, so why not use it against everyone else?

Some view judicial activism as a bad thing, while others find it acceptable, even good. To prevent judicial activism, some say, the Constitution should be interpreted to mean what it was understood to mean at the time of its inception. Creating law should be left to the legislative branch of government, because its members are elected to represent the will of the people and the states; and the only way to change the meaning of the Constitution was through amendment. Others say that judges should view the Constitution as a "living" document, the principles of which "evolve," and should interpret it to make it more relevant to contemporary circumstances. Justice Antonin Scalia vehemently disagrees with idea of the living document. Associated Press writer, Jonathan Ewing reports him as saying,

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

It is up to the president to nominate members of the Supreme Court. There are no minimum age or citizenship requirements, and many previous justices acquired no judicial experience before their appointments. Nominees should only be rejected if they are unqualified for the job. However, political affiliation and judicial philosophy has influenced the success of a nomination. It is interesting to note that some political pundits have the expectation that a nominee should have attended a prestigious law school, but research has uncovered that the faculty at most prestigious law schools have liberal dispositions.

The Supreme Court term begins on the first Monday in October. Court sessions run until late June or early July. The term is divided between sittings, when the justices hear cases and deliver opinions, and intervening recesses, when they consider the business before the court and write opinions.

There are many traditions to which the court has adhered throughout history. For example, it is customary in American courts to seat justices by seniority on the bench. In the center is the chief justice; to his/her right is the senior associate, the second senior to his left, again right, left, and so on. Justices customarily wear black robes while in court.

The Conference Handshake is used each day; when the Justices assemble to go on the bench and at the beginning of the private conferences, during which they discuss their decisions. Each justice shakes hands with each of the other eight, as Chief Justice Fuller initiated so long ago, to emphasize that differences of opinion on the court do not preclude overall harmony of purpose. As in past centuries, quill pens are placed on counsel tables each day that the court sits. The star beneath the eagle's claws on the seal of the Supreme Court symbolizes the Constitution's creation of "one Supreme Court."

The newest chief justice, John G. Roberts, was sworn in to office in September 2005. Justice Samuel Alito recently replaced retiring Justice Sandra Day O'Connor, the first woman to serve on the Supreme Court.

The judicial branch, like the other two branches of the government, is supposed to be held accountable for its members' behavior on the bench. It is up to the legislative branch to impeach and try sitting judges for "bad behavior." Samuel Chase is the only Supreme Court justice to have been impeached. His crime was behaving in a partisan manner by making inflammatory political speeches to juries and campaigning for President Adams. He was not convicted and remained in his position until his death. This set the precedent that justices would not be removed from office for their political opinions. Having an opinion and acting on it are two different animals.

The million-dollar question is, if the legislative branch won't hold judges accountable for inappropriate use of their power, who will? Some believe that judges should be subject to term limits. Perhaps they would be less inclined to strike down laws enacted by the legislature, unless they are clearly prohibited by the Constitution. Suggestions, anyone?

FURTHER READING

The official Web site of the U.S. Supreme Court http://www.supremecourtus.gov/about/about.html

Cass, Ronald, "Invoking the Clinton Precedent,"
http://committeeforjustice.org/cgi-data/news/files/85.shtml

Historical Documents & Speeches
http://www.historicaldocuments.com/PlessyvFerguson.htm

Kelo v. New London
http://en.wikipedia.org/wiki/Kelo_v._New_London

Monk, Linda R. The Words We Live By. New York: The Stonesong Press, 2003.

OYEZ: U.S. Supreme Court Multimedia
http://www.oyez.org/oyez/resource/case/307/

Patrick, John J. The Supreme Court of the United States. New York: Oxford University Press, 2001.

Plessy vs. Ferguson: Separate isn't Equal
http://www.ferris.edu/htmls/news/jimcrow/links/misclink/plessy/

Robinson, Susan, “A Day in Black History”
http://www.gibbsmagazine.com/Plessy.htm

Scalia Dismisses 'Living Constitution'
http://news.yahoo.com/s/ap/20060214/ap_on_go_su_co/scalia_constitution

"SEPARATE BUT EQUAL" PLESSY V. FERGUSON 1896
http://www.lawbuzz.com/can_you/plessy/plessy.htm

Center for Civic Education. We the People: The Citizen and the Constitution. 2002.

Zimmerman, Thomas, “Plessy v. Ferguson” available at http://www.bgsu.edu/departments/acs/1890s/plessy/plessy.html

Copyright © Nancy Salvato 2006

Nancy Salvato is the President of The Basics Project, (www.Basicsproject.org) a non-profit, non-partisan research and educational project whose mission is to promote the education of the American public on the basic elements of relevant political, legal and social issues important to our country. She is also a Staff Writer, for the New Media Alliance, Inc., a non-profit (501c3) coalition of writers and grass-roots media outlets, where she contributes on matters of education policy.

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Nancy Salvato is an Independent Contractor with Prism Educational Consulting. A teacher, she has worked with students ranging from preschool through college. Her credentials are in History, Language Arts, and Early Childhood Education. Nancy serves as the 6th Congressional District Coordinator with the Center for Civic Education, the Education Liaison for Illinois Senator Ray Soden, and is a member of the DROE Strategic Planning Process to Promote a Countywide Community of Learning. Nancy is currently developing a Constitutional Literacy Program which the DROE hopes to pilot upon completion. Her columns can be found in American Daily, The Common Voice, Education News, GOP-USA, Opinion Editorials, TheRant.us and The Washington Dispatch. She has been published in The Washington Times, Townhall.com, Iconoclast, & Free Republic Network, as well as other nationally and internationally published media outlets.

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