Like the other branches of the national government, the court system has evolved over the course our history. The structure of the court was not fully defined in the Constitution. The first effort to organize the court and clarify its duties and limitations came after the ratification of the Constitution in the Judiciary Act of 1789, and one of the Court’s most important powers, judicial review, was not established until John Marshall’s long tenure as Chief Justice. Over the centuries, the number of justices on the court has sometimes varied and the authority of the court has waxed and waned. Yet for most Americans, the robed figures who pass judgment on the constitutionality of legislation and who resolve major conflicts between states are among the most respected citizens in the nation. While the bench was once occupied only by white men, today’s court reflects the steady growth of equality and democracy: its modern membership has included African Americans, women, and representatives of ethnic groups within our society.
In this issue, History Now examines the functions of the court, the court’s composition, and the philosophical differences that have emerged within its membership over the centuries. It also provides a case study of one of the major crises in the history of the modern court: Roosevelt’s “court packing” plan, and provides a portrait of one of the justices, Sandra Day O’Connor. Each of these essays can serve as the basis for critically important lessons for our nation’s future voting citizens.
In “The Form and Function of the Supreme Court,” Professor Charles Anthony Smith walks us through the origins of the court, its structure and jurisdiction, and its decision-making processes. Next, in “The Supreme Court Then and Now,” A.E. Dick Howard traces the expanding domain of the Supreme Court, from the establishment of the principle of judicial review to the nineteenth century focus on issues of federalism to the extraordinary range of issues it grapples with today. In the process, Howard raises several perplexing issues about the role of an unelected body in a democracy. In “The Marshall and Taney Courts: Continuities and Changes,” Professor Richard Bernstein examines two of the most influential Chief Justices and the impact of their judicial philosophies on the evolution of the court. In “FDR’s Court-Packing Plan: A Study in Irony,” Richard Menaker offers a fascinating look at one of the most controversial events in the court’s history. Menaker sets the historical context for Roosevelt’s radical proposal and offers a revisionist interpretation of the impact his plan had on the court’s shifting view of New Deal legislation. Finally, Meryl Justin Chertoff’s essay, “Sandra Day O’Connor: A Life of Action” provides a compelling portrait of one of the modern court's path-breaking justices.
As always, our archivist Dr. Mary-Jo Kline provides a wealth of resources for those teachers who want to read more on each of these topics. And, our teacher-reviewers, Bruce Lesh, winner of the OAH Teacher Award, and Philip Nicolosi, winner of the NCHE Gagnon Prize for Excellence in Teaching, offer reviews of two excellent books that might be used in the classroom. Our master teachers have created lesson plans for elementary, middle school, high school, and AP classes. And don’t miss this issue’s interactive feature, “15 Supreme Court Cases Every High School Student Should Know.”
Editor, History Now
Carol Berkin is Presidential Professor of History at Baruch College and The Graduate Center, City University of New York. She is the author of several books including Jonathan Sewall: Odyssey of an American Conservative, First Generations: Women in Colonial America, A Brilliant Solution: Inventing the American Constitution, and Revolutionary Mothers: Women in the Struggle for America's Independence.