With those words — the opening sentence of the Constitution’s Article III — the document’s Framers announced the birth of an institution then unknown to the world, a national court with the authority to decide cases “arising under” the country’s Constitution and laws. Precisely what that authority would mean in practice — what the Supreme Court’s role would be with respect to the 2 elected branches of the new government — was far from clear when the Constitution was drafted in 1787. That role remains disputed even today, when Supreme Court nominees are routinely asked by members of the Senate Judiciary Committee to disavow all interest in using the Court’s authority in a manner that might be described as “judicial activism.”
That lacking influence over either the sword or the purse, and “possessing neither force or will, but merely judgment,” the judiciary would prove to be the “least dangerous branch.” That process of self-definition continues today.
Debating and defining the powers of Congress and of the president consumed much of the delegates’ attention and energy. Central provisions of Article III were the product of compromise and, in its fewer than 500 words, the article left important questions unresolved.
That the president and Congress were able to move into their own homes by 1800, while the Supreme Court lacked its own real estate until nearly the middle of the 20th century, certainly suggests that the Court, and the branch that it was to head, began life in something less than equal partnership with the other 2 branches. It would be up to the Court itself to establish parity, something it achieved by giving itself dominion over the Constitution.
In the beginning, the prospect seemed distant that the Court would matter much at all. During its first 2 terms, February and August 1790, it had almost nothing to do. A year after its first session, the Court finally received its first case, but the case settled before argument.
The decision’s significance lay in the Court’s assertion of authority to review the constitutionality of acts of Congress. It is emphatically the province and duty of the judicial department to say what the law is.
But since then, the Court has lost its early reticence. It has declared acts of Congress unconstitutional more than 150 times.
A disappointed litigant’s vow to “take my case all the way to the Supreme Court!” is likely to prove an empty threat. An appeal on the way to the Supreme Court encounters many obstacles. Article III limits the jurisdiction of the federal court to deciding “cases” and “controversies,” although, as we shall see, the meaning of those words is hardly self-evident. Another obstacle is inherent in the Supreme Court’s place in the federal system: the Court generally may not review a state supreme court’s interpretation of a state’s own constitution. Other obstacles to Supreme Court review stem from federal law. For example, Congress has set strict deadlines for filing Supreme Court appeals.
Someone who has followed all the rules and whose case falls cleanly within the Court’s jurisdiction then encounters perhaps the most daunting obstacle of all: the justices’ freedom to say no. Unlike most appellate courts, which must act on all properly presented appeals, the Supreme Court has nearly complete control over its docket. Year in and year out, the justices agree to decide only about 1% of the cases that reach them.
First, none of the cases mentioned here was decided unanimously; each garnered at least 3 dissenting votes. So whatever the Constitution was saying, the justices acted on different understandings of its commands, an indication that the art of constitutional interpretation is far from paint-by-number exercise.
Second, many constitutional cases, like the law school affirmative-action case, require the justices to balance competing interests, in this instance the white plaintiff’s claim of a right to equal treatment versus the state’s assertion of society’s need for an ethnically diverse education population. Different justices will balance competing claims differently, in a context-laden process that is considerably more complex than simply deciding in a vacuum whether one side’s claim is valid. Much of constitutional law, as it has evolved, entails some sort of balancing test between competing constitutional values.
Third, unlike the early justices, justices of the modern Court rarely find themselves in the position of confronting the Constitution head-on. Rather, constitutional questions reach the Court encrusted by layers of precedent built up over more than 2 centuries.
Justice Scala describes himself as a textualist and an “originalist” who believes that the only legitimate basis for interpreting a provision of the Constitution is the original understanding of the Constitution’s Framers. “If the courts are free to write the Constitution anew, they will, by God, write it the way the majority wants. By trying to make the Constitution do everything that needs doing from age to age, we shall have caused it to do nothing at all.”
Perhaps Congress failed to anticipate the full range of situations in which the stature might be invoked. Or, quite often, the task of addressing all the possible applications of a bill under consideration exceeds the legislative appetite for detail or requires one compromise too many. Congress is then quite happy to let the courts fill in the blanks. After all, unlike a constitutional ruling, a ruling on the meaning of a stature can be overturned by new legislation if Congress concludes that the courts have come up with the wrong answer.
Justice Scala, by contrast, refuses to cite legislative history at all, due to what he considers its unreliability and “manipulability” by congressional staff members. Rather than guess at an underlying purpose, he argues, courts should simply hold Congress to the precise language that it enacts into law. Other justices consider legislative history to be an informative tool at least some of the time.
Further, the norm of adjudication requires giving reasons. A Supreme Court opinion typically describes the facts of the case and the range of relevant precedents and legal principles, and then gives the reasons why one legal path rather than another leads to the correct resolution. Any of those steps — fitting the facts together, describing the relevant law, and choosing a path to the final judgment — may be contested in a given case, and a justice writing a majority opinion must persuade a majority of all 3 if the opinion is actually to speak for “the Court.”
There are no formal requirements for becoming a Supreme Court justice. The Constitution requires a senator to have reached the age of 30, and a president to be at least 35 and a “natural born citizen,” but it sets no comparable rules for justices.
Nonetheless, a president who weeks to use a Supreme Court appointment to advance an agenda that Congress has not embraced, especially when the balance on the Court is perceived to be at stake, is most likely to meet resistance no matter how impressive the credentials of the nominee.
Unlike policymakers, Robert said in his opening statement, judges are bound by precedent and should approach their role with “a certain humility.” He told the senators: “Judges are like umpires. Umpires don’t make the rules; they apply them.”
When asked to explain how these activities amounted to impeachable offenses, Ford replied that “an impeachable offense is whatever a majority of the House considers it to be in a given moment o f history.”
Today, however, criticisms comes from both the Right and the Left, from scholars who argue that when justices linger well into advanced old age in order to time their retirements according to political loyalty, and when presidents try to protect their legacies far into the future by seeking ever younger nominees, life tenure exerts a distorting effect on both the institutional life of the Supreme Court and the political life of the country.
Even if previously confirmed to the Court, a nominee for chief justice must receive a separate Senate confirmation and a new commission. As a matter of confirmation politics, that requirement perhaps serves as a disincentive for a president to elevate a sitting justice. The confirmation process can easily turn into a referendum on the nominee’s Supreme Court career so far, as well as on the direction of the Court as a whole.
Just because 5 justices make up a majority to reverse or affirm a lower court decision does not mean that all 5 see the issues the same way or feel equally committed to the outcome or the rationale.
Besides the functions themselves, the incumbent’s influence depends on the use he makes of them and the manner in which they are discharged. Beyond all this is the human factor, the intangibles, the personality — the moral energy the man at the center releases.
The function of the Supreme Court is conceived to be, not the remedying of a particular litigant’s wrong, but the consideration of cases whose decision involves principles, the application of which are of wide public or governmental interest, and which should be authoritatively declared by the final court.
The Court’s rule regarding argument informs lawyers: “Oral argument should emphasize and clarify the written arguments in the briefs on the merits. Counsel should assume that all Justices have read the briefs before oral argument. Oral argument read from a prepared text is not favored.” Successful Supreme Court advocates are not only fast on their feet; they have thought deeply about the place their case occupies in the broader legal universe, and they understand that what the justices want from the argument is assurance about the larger consequences of ruling for one side or the other. What are the likely implications for the next case, and the case after that? The justices see themselves as engaged in an exercise much more consequential than resolving a dispute between 2 warring parties.
While argument sessions present the Court’s public face, the Court’s substantial work takes place for the most part behind the scenes. It begins with the case-selection process.
The Court’s disposition of these requests is a matter of complete discretion.
By the same token, a clause of the US Constitution ought not to be interpreted differently by the Supreme Court of California and by NY’s highest court, its Court of Appeals. (State courts, of course, are free to interpret their own state’s constitutions to give more protection — but not less — to individual rights than the US Constitution provides.)
By a customary “rule of 4,” it takes the votes of 4 justices to accept a case for argument and decision — to “grant cert.”
A denial of review neither sets a precedent nor indicates that the Court agrees with the lower court’s judgment, points that are often misunderstood.
But naturally, the least controversial cases, those that produce unanimous or near unanimous decisions, get decide first. Complicated cases or those that, for one reason or another, produce numerous concurring and dissenting opinions take longer, perhaps much longer, and only the pressure of an impending July 4 weekend may spur the justices to make the last-minute compromises necessary to bring a decision out by the end of June.
To the extent that it conveys the image of the 3 branches of the federal government, each operating in its own sphere, the phrase “separation of powers” is misleading. A more accurate image is one of dynamic interaction, in which the Supreme Court is an active participant. Even when relations among president, Congress, and the Court appear peaceful, there is often tension beneath the surface, reflecting not dysfunction so much as distinct institutional limits, perceptions, and responses to events. When relations deteriorate, as they have periodically, what starts as disequilibrium can take the form of a power struggle.
The Court submits its annual budget request to Congress, and the justices take turn going before the relevant congressional subcommittees to testify about he Court’s fiscal needs. Congress determines the salaries of the justices and all federal judges.
When the president acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that the possess in his own right plus all that Congress can delegate.
There’s a “zone of twilight” in which the president acts in absence of either a congressional grant or denial of authority. He then can only rely upon his own independent powers, and whether that reliance is legitimate is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.
Finally, when the president takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb.
Justices themselves have had something to say on this subject. “We all rely on public confidence and trust to give the court’s decisions their force. We don’t have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.”
In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity.
One classic image, dating to early in the country’s history, is of the justices as teachers.
Defenders of the Supreme Court’s exercise of judicial review must occasionally contend with the criticism that it is essentially undemocratic — “counter-majoritarian” — for unelected life-tenured judges to have the last word on the constitutionality of legislation enacted by the people’s elected representatives. Shifts in electoral majorities in response to changes in the public mood can occur much faster than changes on the Supreme Court, where tenures last decades.
So perhaps the public expression of trust in the Supreme Court reflects a leap of faith rather than actual knowledge; people want to believe in some governmental institution, and they are more likely to be able to identify what they don’t like about the political branches.
Perhaps another way of making Robert Dahl’s point would be to note that Supreme Court justices are members of the nation’s elite, and they tend to share the elite’s perceptions.
A “terrible price would be paid for overruling,” the 3 justices wrote, adding that such step “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”
The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the US and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decree. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.
To overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.
Other countries have seen little to emulate in the US model of life tenure. Not coincidentally, the confirmation battles that mark the US judicial selection process, even for lower court justices, are largely absent.
Citing foreign law, both Justice Scala and Chief Justice Roberts have complained, is like looking out over a crowd and picking out one’s friends — selecting those opinions most compatible with a desired result.