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The U.S.
Supreme Court: Then and Now
by Theodore M.
Vestal
A Presentation
for the Territory Speakers Program
Oklahoma
Humanities Council
One of the ironies of American democracy is
that the least democratic institutions, the courts, are the very ones which have
created new rights, extended existing ones, and helped America approach the
ideals of democracy. Because it
sits atop the hierarchy of the nation's court systems as the Court of Last
Resort, it is the Supreme Court that plays a key role in this drama of
democracy.
I mentioned the Court's undemocratic
nature. It chooses its own work, allows no cameras when the Court is in session,
does not permit broadcasts of proceedings, and makes its important decision in
secret conferences. As a group of prima
donnas, the Court has been described as nine little law firms or nine scorpions
trapped in a bottle. Without doubt, the justices are autonomous actors. For
example, during a
conference when Charles Evans Hughes was Chief Justice, Justice James
McReynolds was late. The Chief told a messenger, "Go tell him we're
waiting." The testy McReynolds sent word back: "Go tell the C.J. I
don't work for him." Furthermore, the justices are anonymous. When
they walk down the street few people recognize them.
The Justices begin the annual term of the
Court on the first Monday of October and continue to work until late June or
early July. They are admired for being among the most
intelligent of government officials since they have the sense
to finish their work and leave Washington before the arrival of the dreadful
heat of the summer in the nation's capital.
In our non-clerical, nonmilitary
government, it is only the justices who wear uniforms. When the Supreme Court
first met in 1790, Chief Justice John Jay wore a black robe trimmed with red.
The other justices followed Jay's example. The
Chief had simply used his Doctor of Laws gown from the University of Dublin,
which had conferred a degree upon him. The members of the Court soon switched to
plain black robes--
a fashion that was to continue for almost two centuries. Fortunately, they did
not copy the British tradition of
judges wearing wigs. Although we can never be sure what the
justices wear under their robes, it is a fact that Chief Justice Roger Taney,
in the early nineteenth century, was the
first justice to wear trousers instead of the traditional
knee breeches that had been in fashion until that time.
In January 1995, Chief Justice William
Rehnquist brightened the judicial lineup with a new Chief's robe that he
designed himself. It was inspired by a performance of Gilbert and Sullivan's
"Iolanthe" that included a lord chancellor in an eye-catching black
robe with four thick golden stripes on the upper part of each sleeve.
Rehnquist's sartorial addition was widely seen when the Chief Justice presided
over President Clinton's impeachment trial in early 1999. Not to be outdone by
their Chief, the women justices, O'Connor and Ginsburg, brightened court-wear
with what Time has called "modish, attention-getting dickies."
The Supreme Court interprets the
Constitution and protects our civil rights and liberties, keeps the other
branches of the national government properly checked and balanced and the
division of powers between the states and the federal government in order. In
doing this the Court enunciates the contemporary political theory of the nation,
giving meaning to the vague phrases of the constitution such as "due
process" and "equal protection of the laws, and interpreting new areas
of the law--such as privacy rights, the right to die, or obscenity on the
internet (or as one wag put it: the problem of what to do to one who falsely
shouts "fire" on a crowded website). The U.S. Supreme Court must be
doing something admirable, for its work has been copied by courts in other
democratic nations such as Canada, Germany, Japan, and India.
At its best, the Court's writing is an
important contribution to American literature. The opinions of justices Holmes,
Brandeis, Jackson, Black, Douglas, and Brennan, among others, eloquently express
our finest thoughts on democracy and freedom. As such, they should be, but
seldom are, included in anthologies of great American writing.
I've just mentioned some of the justices
who can be considered "big men" or "giants" on the court.
There have also been "little men" figuratively and literally. Alfred
Moore of North Carolina, appointed to the Court by President John Adams in 1799,
stood four-and-a-half feet tall and weighed between eighty and ninety pounds,
making him smaller than the current Court's petit Justice Ginsberg. Moore was
not exactly an intellectual giant either. During his five years on the Court, he
wrote only one opinion and that one
was only about a page in length. Moore even managed to be absent when Marbury
v. Madison, one of the most important decisions ever handed down by the Supreme
Court, was decided
in 1803. The biggest justice was Chief Justice William Howard Taft who stood
six feet, two inches tall and weighed over 300 pounds. Taft was the only person
to serve as president of the
United States and as a justice--a big man indeed.
The history of the Court as an institution
parallels the growth of the American Republic. At the Constitutional Convention,
it was unclear whether the new government should have a national court system or
a supreme court. Delegates committed to state power were suspicious of national
authority and considered sate courts fully capable of enforcing national laws.
Nationalists like James Madison, on the other hand, envisioned a national
judiciary that would not only enforce national law but supervise the state
judiciaries as well. The Framing Fathers reconciled these divergent views in
Article III of the Constitution by creating a Supreme Court and giving it
original and appellate
jurisdiction but subjecting it to Congressional exceptions and regulations. At
the same time, states played a significant role in the organization of the
federal judiciary.
In
The Federalist Papers 78, Alexander Hamilton described the federal judiciary as
"beyond comparison the weakest of the three departments" of
government. Hamilton wrote of the "natural feebleness of the
judiciary" with neither the power of the purse nor of the sword, but he
made an argument for the necessity of the federal courts' interpreting the
Constitution. From its position of weakness, the judiciary would merely have
sufficient strength to keep the legislative and executive branches within their
assigned
limits, thereby ensuring constitutional supremacy. As if to live up to
Hamilton's prophecy, the Supreme Court was far from powerful in its early years.
The first meeting of the Supreme Court was
at the Royal Exchange Building in New York City in February 1790. The Court met
at the very time the Bill of Rights was being debated before the First Congress,
but there was not much business for the Court during its early terms. In
December 1790, the government moved to Philadelphia for ten years, but
the Supreme Court had no permanent home. It did have personnel problems.
Keeping justices on a Court held in low esteem by most Americans during the
first decade of its
existence was not easy. The justices, assigned the duty of "riding
circuit," sitting on circuit courts in the thirteen states, had to endure
the rigor of twice a year traveling
great distances (as much 1,800 miles in a country with poor roads or, in some
places, none at all) on horseback or by rough-riding carriages. Circuit riding
was not an attractive
condition of employment, and eventually the practice was brought to an end
shortly after the Civil War.
Even the Chief Justiceship went begging on
several occasions. John Rutledge resigned from the Court to become Chief Justice
of the Supreme Court of South Carolina, a
position he thought more prestigious and one where there was more action. John
Jay went on a diplomatic mission to Great Britain while Chief Justice and was
elected Governor of New York in absentia while away. Jay resigned from the
Court, and
then President John Adams asked him to return upon the completion of his term
as governor, Jay turned him down on the grounds that "the Court lacked
energy, weight, and
dignity." Thanks to his refusal, Adams appointed a Virginian, John
Marshall, to the Chief Justiceship, and U.S. history was very different as a
result.
When the government moved to the new
capital in Washington, D.C., in 1800, the justices lived in the same boarding
house and discussed cases over meals and in the
evenings. The Court was provided a room in the capitol
building where the Court was to meet for 135 years. Chief Justice Marshall
began the practice of having opinions of the Court written by one justice, thus
ending the seriatum
practice that required each justice to write an opinion in every case
(something for which Marshall should be thanked by
every librarian and law student in the nation).
In 1805, the power of the fledgling Court
was challenged by the impeachment of Justice Samuel Chase, a Federalist, by the
Jeffersonian-Republican Congress. The Senate failed to convict Chase, but his
trial raised the question of whether
impeachment should be based on high crimes and misdemeanors or on conduct
Congress did not approve. Had Chase been found guilty, Chief Justice Marshall,
also a Federalist, probably
would have been next to be impeached by the Jeffersonians. In a letter to a
friend, Marshall privately suggested that Congress be given appellate
jurisdiction over Supreme Court
decisions rather than impeachment. Fortunately for the country, impeachment has
not been used as a political weapon to remove justices because of their
unpopular decision.
The Supreme Court, in its operations, has
reflected the history of the nation. The main thrust has been to meet what
Justice Oliver Wendell Holmes called the "felt necessities" of each
period in the nation's history.
At the outset, the primary needs of
establishing
national power and vindicating property rights against excesses of state power
were met in the classic decisions of
the Marshall Court. In its early decisions, the Court shored up the powers of
national government in using implied powers of the constitution (McCullough v.
Maryland, 1819), the commerce power (Gibbons v. Ogden, 1824), and the power of
contract (Dartmouth College v. Woodward, 1819). The Court also decided that the
Bill of Rights did not apply to the
states (Barron v. Baltimore, 1833).
During Marshall's Chief Justiceship
(1801-1835), the Court proceeded to establish judicial independence from the
other branches and judicial review of federal and state laws and executive
acts. Most importantly, the Court reinforced
constitutionalism, the idea of limited government.
Marshall's successor, Roger Taney,
continued the work of the Court in delineating the boundaries of the federal
system and interpreted Jacksonian democracy's concept of public power as a
counterweight to property rights in the expanding republic. The record of the
Taney Court (1835-1864) was marred however by the Dred Scott case (Dred Scott v.
Sanford, 1857), the most disastrous decision in Supreme Court history.
In Dred Scott, the Court said that African Americans could not be citizens;
that the Missouri Compromise was unconstitutional; and that Congress had no
power to ban
slavery anywhere. The decision was one of the factors leading to the Civil War.
During the Civil War, President Lincoln
defied the Court, and this period was the low point in the Court's history.
During Reconstruction, Dred Scott was reversed by the 13th, 14th, and 15th
Amendments to the Constitution. But shortly after ratification of the 14th
Amendment, the Court emasculated the Privileges or Immunities Clause that would
have guaranteed civil rights of the former slaves (The Slaughterhouse Cases,
1873) and struck down Civil Rights Acts passed by the Radical Republican
Congress (The Civil Rights Cases, 1883). The Court's action led to the passage
of Jim
Crow laws in southern states, and these in turn were affirmed by the Court's
decision in Plessy v. Ferguson (1896) that
upheld the separate but equal doctrine. In dissent in Plessy,
Justice John Harlan wrote a profound, if optimistic, critique of equality in
America: "Our Constitution is color blind, and neither knows nor tolerates
classes among citizens."
During the Gilded Age (the last three
centuries of the nineteenth century), the Supreme Court provided a legal
accompaniment to the industrial conquest of a continent. The justices used
Liberty of Contract to allow capitalism to
flourish (see Lochner v. New York, 1905). But the protection of business
clashed with the needs of the nation during Franklin Roosevelt's New Deal.
"Nine old men" (actually a five man majority on the Court) stymied
government's attempts to address the problems of the Great Depression. National
and state efforts to regulate business were struck down by a
badly divided Court. The "sick chicken" case (Schecter Poultry Corp.
v. U.S., 1935) killed the NIRA eagle (the logo of the National Industrial
Recovery Act) and led to FDR's Court packing plan. Under the proposed plan, for
every federal judge or justice over the age of seventy who did not
retire, the president could add a new one. Neither Congress nor the public
liked the idea, but it was made moot by the "switch in time that saved
nine," the conversion of Justice Owen Roberts to the side of the Court that
upheld government regulation of the economy (West Coast Hotel Company v.
Parrish, 1937).
It was during the 1930s that the Court
finally got a permanent home. The neoclassical marble palace across the street
from the Capitol Building was completed in 1935 at a cost of $9.5 million and
was finished ahead of time and under budget. The architect was Cass Gilbert who
had designed the White City in the 1893 World's Fair in Chicago and also the
U.S. Chamber of Commerce Building in Washington, D.C.
Only in twentieth century did the Court
show a strong interest in civil liberties and the protection of personal rights.
In the face of growing governmental power, the Court began to preserve a sphere
for individuality. In 1919, for the first time, the Court addressed the question
of the national government suppressing speech in Schenck v. U.S., where Justice
Holmes formulated the famous "clear and present danger test." It was
in 1925 that the Court finally admitted that certain Bill of Rights protections
(contained in Amendments 1 through 10) applied to the states. In the case of
Gitlow v. NY (1925) the Court said that freedom of speech and of the press were
protected from infringement by state governments under the Due Process clause of
the 14th
Amendment. Subsequent decisions of the Court added other fundamental rights to
the list of freedoms protected from state abrogation: the right to counsel in
capital cases (Powell v. Alabama, 1932), freedom of religion (Cantwell v.
Connecticut, 1940), and separation of church and state (Everson v. Board of
Education, 1947). A majority of the
Court maintained that certain rights "implicit in an ordered scheme of
liberty" could be protected from state infringement but that these rights
should be determined on a case-by-case
basis (see Palko v. Connecticut, 1937).
In contrast, in the 1940s, as many as four
justices advocated a theory of "total incorporation"--the idea that
the 14th Amendment required the states to respect all rights specified in the
Bill of Rights (see dissenting opinions in
Adamson v. California, 1947). Total incorporation was never embraced by a
majority of the Court, and as a result, until the 1960s, civil liberties and
civil rights remained primarily under the control of the states.
During the Chief Justiceship of Earl Warren
(1953-1969), however, the Court adopted a theory of "selective
incorporation" and applied almost all guarantees of the Bill
of Rights to the states. During the "due process revolution" of the
Warren Court, specific protections of the 4th, 5th, 6th, and 8th Amendments were
extended to state criminal defendants and increased due process was required in
dealing with criminal defendants (see especially, Mapp v. Ohio, 1961, re the
exclusionary rule; Gideon v. Wainwright, 1963, re right to counsel; Miranda v.
Arizona, 1966, re self- incrimination). The Warren Court also handed down the
landmark Brown v. Board of Education case (1954) that ended racially segregated
education; put an end to malapportionment of legislative districts by the states
(see Baker v. Carr, 1962, Wesberry v. Sanders, 1964, and Reynolds v. Sims,
1964); and enunciated an actual malice test in libel cases (New York Times v.
Sullivan, 1964) and the right of privacy (Griswold v. Connecticut, 1965). What
the Warren Court was propounding most convincingly was the constitutional ideal
of human
dignity.
The Burger Court (1969-1986) continued to
devote much of its docket to rights issues. Contrary to expectations, the Burger
Court did not directly overrule the frequently criticized criminal procedure
rulings of the Warren Court but refused to extend those rulings and
"chipped away" at their holdings. The Court supported some new claims
of rights, however. In the controversial Roe v. Wade (1973), the
majority employed the right to privacy in invalidating a state anti-abortion
statute. In a series of cases, the Court struck down statutes that discriminated
on the basis of gender (see, e.g., Frontiero v. Richardson, 1973), and in the
famous OSU-3.2 beer decision, Craig v. Boren (1976) adopted an intermediate
scrutiny test for cases involving gender discrimination. It was also during the
Burger Court years that the Brethren were joined by their first sister, Justice
Sandra Day O'Connor, appointed by President Ronald Reagan in 1981.
Associate Justice William Rehnquist was
elevated to the position of Chief Justice by President Reagan in 1986 and has
led the Court in "a tilt toward the right." In an interview, Rehnquist
indicated he wanted the Court to call "a halt to a
number of the sweeping rulings that were made in the days of the Warren
Court." This Rehnquist agenda was not carried out. Instead, his intended
counter-revolution has served only as a confirmation of most of the Warren Court
jurisprudence. Furthermore, the justices of the present day Supreme Court are
criticized as being "the apotheosis of mediocrity." Not since
pre-Civil War days has the caliber of the justices been so ordinary. Yet the
Court continues to evolve in its role of balancing the Constitution with
majorities sometimes taking on the mantle of judicial activists and at other
times being restraintists.
Historically, there are cycles when the
Court is assailed and then defended for its acts and its failures to act. The
frequency of such cycles should remind us that the
Constitution's meaning is never quite settled, that the judicial tasks are
never quite done, and that the challenges to the Court's authority can never
quite be stilled.
Arthur O'Shaughnessy, the Irish poet, once
wrote: "For each age is a dream that is dying, or one that is coming to
birth." For over 200 years the United States Supreme Court has attended the
birth and the death of different dreams. And if the current Court is presiding
over the close of an age that the readers of this chapter, in some degree, have
experienced, who knows what awaits us in a new age in the new
millennium attended by what will soon be a new United States Supreme Court?
What we can be assured is that the actions of Court, then as now, will have
powerful implications for government and individual rights.
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