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The Supreme Court Then and Now
by A.E. Dick Howard
White Burkett Miller Professor
of Law and Public Affairs, University of Virginia Law
School
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| Supreme Court Justices in 2000 (left) and in 1894 (right) (Courtesy of the Library of Congress)
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The framers of the United States Constitution made clear
that the document was to be regarded as fundamental law.
Article VI states that the Constitution and those laws
"which shall be made in pursuance thereof" (as
well as treaties) shall be "the supreme Law of the
Land." The framers also provided, in Article III,
for one Supreme Court and such inferior courts as Congress
might establish. Do those two provisions, read together,
give the Supreme Court the power to strike down laws,
including acts of Congress, found to be inconsistent with
the Constitution?
While the framers clearly intended that there be a judicial
branch, at the Philadelphia Convention of 1787 they spent
little time mulling how far the "judicial power"
might extend. They spent far more time debating the powers
the new federal government would have, the composition
of the federal Congress, the balance which ought to be
struck between state and federal power, and the nature
of the new federal executive. When the proposed Constitution
was put to the several states for their approval, the
ratification debates focused heavily on concerns about
federal power generally—and on the lack of a bill
of rights.
At the state level, judicial review—the power of
a court to declare a legislative act to be unconstitutional—was
only just beginning to emerge in the early years of the
republic. The very idea of democracy was thought to emphasize
the role of legislatures as being the voice of popular
will. But Americans soon discovered that their own legislatures,
like kings or parliaments, could threaten rights and freedoms.
Hence, along with ideas like separation of powers and
checks and balances, judicial review emerged as a linchpin
of ensuring constitutional supremacy.
At the federal level, it was Chief Justice John Marshall
who, in 1803, made explicit the courts' power of judicial
review. In famous language, oft quoted in later cases,
Marshall declared, "It is emphatically the province
and duty of the judicial department to say what the law
is." And that duty, he concluded, encompasses the
courts' power to strike down even acts of Congress if
they are found to conflict with the Constitution.
Until the American Civil War, the Supreme Court's constitutional
jurisprudence focused largely on matters of federalism.
The Bill of Rights, added to the Constitution in 1791,
applied only to federal actions, not to the states. After
the Civil War, however, the adoption of the Fourteenth
Amendment enjoined the states from denying any person
due process of law or equal protection of the laws. In
time these provisions would be the basis both for major
congressional actions (such as the Civil Rights Act of
1964) and for more sweeping judicial power (notably including
the Supreme Court's 1954 decision in Brown v. Board
of Education, finding racial segregation in public
schools to be unconstitutional.
In the early decades of the twentieth century, the Supreme
Court was often perceived as protecting property and enterprise
against progressive legislation. In 1905, for example,
the Court, striking down a New York law limiting the number
of hours bakers could work in a day, called such statutes
"meddlesome interferences" with the rights of
individuals. That kind of judicial thinking put the Court
on a collision course, in the 1930s, with President Franklin
Roosevelt's New Deal. Threatened with "Court packing”—the
proposal that further seats might be added to the Court—the
justices changed course and took a more deferential approach
to state and federal social and economic reform legislation.
Today's Supreme Court undertakes to review a remarkable
range of issues. America is sometimes referred to as a
"litigious society." Certainly Americans seem
to have a knack for converting disputes into judicial
contests—a trait commented on in the nineteenth
century by Alexis de Tocqueville. In the 1960s, in the
era of Chief Justice Earl Warren, the Court embarked on
an especially ambitious agenda. The Warren Court decreed
one person, one vote to be the rule in legislative appointment,
applied most of the procedural guarantees of the Bill
of Rights to the states, gave heart to the civil rights
movement, and opened the door to a constitutional right
of privacy and autonomy. Even with justices appointed
by more recent Republican presidents, the Court has shown
a discernable self confidence in tackling many of the
country's great issues.
What role does the Supreme Court play in American life?
Among its key functions is that of being an arbiter of
the federal system. No issue occupied more of the framers'
attention at Philadelphia than giving the national government
adequate powers while at the same time protecting the
interests of the states. Thus the Supreme Court regularly
is called upon to decide whether a federal statute or
regulation preempts a state action. Likewise, the Court
is often asked to decide whether a state law, otherwise
valid, impinges upon some national interest such as the
free flow of commerce. For example, when North Carolina
passed a law which, neutral on its face, discriminated
against Washington state apples in favor of local growers,
the Court saw protectionism at work and invalidated North
Carolina's law.
The Supreme Court also plays a fundamental role in ensuring
the rights and liberties of individuals. James Madison
once worried lest the Bill of Rights be only a "parchment
barrier." In modern times the Court has been active
in enforcing the guarantees of the Bill of Rights, not
only against the federal government (their original purpose),
but also against the states. The Court's reading of constitutional
protections has often been robust and assertive. For example,
in 1963 the Court held that the Sixth Amendment's guarantee
of the right to counsel means, not only one's right to
have a lawyer in court, but also the right to have counsel
appointed, at state expense, if the defendant is too poor
to afford a lawyer. The justices are especially solicitous
of freedom of expression. Thus, in 1965 the Court held
that, if a public officials who bring libel suits must
meet a demanding standard— "actual malice,"
that is, proving that the speaker knew that the statement
was false or acted in reckless disregard of its truthfulness.
One hears lively debate over whether the Constitution
should be read as a "living" document. Some
argue that judges should search for the Constitution's
"original meaning," that is, the meaning ascribed
it to by its framers, augmented perhaps by tradition and
precedent. Others see the document as more organic. Thus
in cases arising under the Eighth Amendment's ban on cruel
and unusual punishment, the Court has invoked a notion
of "evolving standards," permitting the Court,
as it did in 2005, to declare the death penalty for youthful
offenders to be unconstitutional.
There is no doubt that the Court has gone beyond the literal
text of the Constitution in recognizing and securing particular
rights. A conspicuous example is the right of privacy
or autonomy. Drawing upon the Fifth and Fourteenth Amendment's
guarantee of due process of law, the Court has found constitutional
protection for such interests as the right of contraception,
a woman's right to choose to have an abortion, and, in
2004, the right not to be punished by a state for homosexual
behavior. The Court's abortion decisions have been especially
controversial, but, whatever the Court may do in future
abortion cases, it is hard to imagine the justices' declaring
that there is no constitutional basis, in general, for
some notion of personal privacy.
Under the Constitution, justices of the Supreme Court
serve for life or good behavior. No justice has ever been
removed from the Court by impeachment. Nominations to
the Court, however, have in recent decades become highly
political events. The more territory the Court's decisions
cover, the higher the stakes when a vacancy occurs. To
what extent, then, do the Court's decisions reflect the
social and political attitudes of the day? Some cynics
suggest that the justices "read the newspapers"—that
they take public opinion into account when they shape
opinions. There is little basis for this view. A fairer
judgment is that, over the long term, the Court tends
to reflect the country's dominant mood. Thus the Warren
Court, in the 1960s, was sympathetic to national solutions
for national problems. Under the leadership of Chief Justice
Rehnquist, the Court in more rescent years became, in
some respects, a more conservative tribunal, more respectful
of the states' place in the federal union. As the Roberts
Court gets underway, the struggle between the more conservative
and liberal justices on the Court seems to have become
sharper.
The Supreme Court's decisions raise a fundamental question:
What is the place of an unelected judiciary in a democracy?
There is an inherent tension between two basic principles
in a constitutional liberal democracy—accountable
government by a democratically elected majority, and enforcement
of the Constitution even if it requires striking down
laws favored by that majority. Judicial review is especially
attractive when it reinforces democratic principles such
as one person, one vote, free and fair elections, and
freedom of speech and press. The rule of law—indeed,
the very idea of a constitution—requires that the
Constitution be enforced as the supreme law of the land.
The Supreme Court may err in particular cases. But the
Court's role in ensuring the rule of law commands widespread
assent among the American people.
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