With its controversial decisions in 2022 involving abortion rights and gun control, public discourse has returned to an age old conversation about whether the Supreme Court of the United States has become too powerful in terms of its ability to enact policy. Established by Article III of the Constitution in 1789 as an independent judiciary that was supposed to be insulated from partisan political policies, in the early years of its existence the Supreme Court was seen as the weakest branch of the federal government, unable to enforce its decisions without help from either the executive or legislative branch. Indeed, the Constitution provided only vague guidelines for how the court was to be structured or what powers it possessed.
So how did it go from those humble beginnings to being a body whose opinions are seen as the final word in determining what is Constitutional, set legal precedent that must be followed by lower courts, and in helping to determine what powers Congress and even the President of the US hold? To be seen as the most powerful branch of the government, but no longer believed as being immune from partisan politics?
The Supreme Court of the United States was established by Article III of the Constitution; Section I of the article states that:
The judicial power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.
However, the Constitution did not really define the judiciary's structure or its powers. Instead, it permitted Congress to determine the original structure of the court, which they did with the Judiciary Act of 1789. That act stated that the Supreme Court would consist of six justices. The act also established the lower federal court system. But it was left pretty much up to the Supreme Court itself to try and define its policies and what types of powers it possessed.
In the first decade or so after it was established, the Supreme Court wielded little power. It didn't even have its own space - instead, the court heard cases in a room in the basement of the Capitol.
But this lack of clearly defined powers allowed the Court to decide them for themselves, and things began to change after John Marshall was appointed Chief Justice in 1801. Before Marshall's arrival, the usual practice was for each of the justices to write his own opinion on every case. It was nearly impossible for the Supreme Court rulings to be seen as setting precedent when the judges couldn't even agree with each other. Marshall changed that; he ordered that the court would issue a single opinion on every case it heard. This would show that the Supreme Court's opinions would be the final word on all constitutional issues and allow those decisions to set precedent for the lower courts.
In Marshall's 34 years as Chief Justice, the Supreme Court issued 1,129 decisions, 1,042 of which were unanimous. This despite the fact that most of the Associate Justices had been nominated by Democratic-Republican presidents who opposed Marshall's Federalist leanings.
Many of the decisions issued by the Marshall-led Supreme Court not only determined how the law would be interpreted, but how the country would be governed. For example, the Supreme Court's decision in McCulloch v. Maryland (1819) established the belief that the Constitution gave Congress powers that weren't explicitly spelled out in the document. That Supreme Court decision was still resonating nearly 200 years later; without this ruling, Congress wouldn't have had the power to create things such as Social Security in the 1930s, the Civil Rights Act of 1964 or the Patient Protection and Affordable Care Act. Marshall's Supreme Court saw its decision in McCulloch v. Maryland as also giving Congress the power to end slavery.
On his final day as President of the United States John Adams nominated 42 men to serve as justices of the peace. But John Marshall, the outgoing Secretary of State who had just been appointed the Chief Justice of the Supreme Court, only had time to finish the paperwork on 38 of the 42 nominees.
When Adams' political rival Thomas Jefferson assumed the presidency, he ordered James Madison, the new Secretary of State, to reject the four nominees whose paperwork hadn't been completed. One of these four men was a Virginia politician named William Marbury, who decided to petition the Supreme Court to force Madison to confirm the nominations of himself and the three others who had been rejected.
Although the Supreme Court denied the petition, Marbury v. Madison (1803) resulted in strengthening the power of the federal judiciary. In his opinion Marshall wrote that Jefferson and Madison had been wrong to reject the nominations and that Marbury had the right to sue in federal court. But he also stated that a law passed by Congress in 1789 allowing plaintiffs to directly petition the Supreme Court was unconstitutional.
This ruling established the doctrine of what is now known as judicial review - which gives the judicial branch of the federal government the authority to check the legislative powers of Congress.
The other major result of Marbury v. Madison is that it established that the executive branch is not above the law; that the Supreme Court had the power to block the actions of the executive branch and order it to follow the judicial branch's requests.
One example of this latter power was when President Richard Nixon complied with the Supreme Court's order to turn over his audio tapes during the Watergate investigation.
- Photo: Fred Schilling, Collection of the Supreme Court of the United States / Wikimedia Commons / Public domain
Supreme Court Justices Aren’t Elected
Unlike the president, vice president, and most other local, state and federal officials, Supreme Court justices are not elected. That means that not only do American citizens have no say in who serves on the highest court, the incumbent president has the ability to appoint justices who have similar views to those supported or opposed by his political party.
In addition, it is Congress, not the U.S. Constitution or the electoral system, that determines the number of Supreme Court justices. The original Supreme Court was made up of six justices, but the number varied over the years, growing to as many as 10 justices during Lincoln's administration before settling at the current number (nine) during Grant's presidency.
So in theory, a sitting president could “pack” a Supreme Court by expanding the number of justices. Of course in order for a president to be able to do this, members of his political party will have to hold the majority of seats in Congress; otherwise, such a law would be unlikely to pass.
This idea of “packing” the court has received increased attention in recent years as the Supreme Court is widely viewed as becoming more and more conservative. But it isn't a new concept. During Franklin D. Roosevelt's presidency, the Supreme Court ruled that several of the president's New Deal policies were unconstitutional.
So in 1937 Roosevelt proposed a plan to expand the number of Supreme Court justices from nine to 15. This would have allowed him to appoint six new justices that would have been supportive of the New Deal. Roosevelt's proposal failed in the Senate, but not before it pressured one Supreme Court justice to switch his allegiance from the conservatives to the liberals.
When the Supreme Court was established by Article III of the U.S. Constitution in 1789, it was determined that the justices would receive lifetime appointments that would end only by death, retirement, resignation, or being removed from office. According to Michael Meltsner, a law professor at Northeastern University, the clause was meant to allow the justices to rule on cases based on the law rather than on partisan politics. “Once a justice is confirmed and takes a seat on the court, they’re not beholden to anybody.”
Excluding the current justices, the average length of service on the Supreme Court is just under 17 years, with William O. Douglas having served the longest - 36 years, 209 days from April 1939 to November 1975. To put this into perspective, Douglas served on the Supreme Court under seven different presidents (Franklin Roosevelt, Truman, Eisenhower, Kennedy, Johnson, Nixon, and Ford). He was one of the justices who ruled on the landmark Brown vs. Board of Education racial discrimination case in 1954. He also was part of the ruling on United States v. Nixon, the 1974 case that is considered precedent in terms of limiting any president's power when trying to claim executive privilege.
Douglas' term is a good example of showing how lifetime appointments can allow one Supreme Court justice to help determine the law for generations. Especially since in 2022 the average life expectancy in the U.S. is 78 for males and 82 for females. In contrast, the average life expectancy for a white male (the only type of person eligible to be a Supreme Court justice at that time) in 1789 was just under 50.
The aging of the current Supreme Court and the feeling that it has veered from being the bipartisan court is was originally meant to be has brought more attention to the question of whether changes needed to be made to the court.
Shortly after Joe Biden was elected president in 2020 he formed a bipartisan Presidential Commission on the Supreme Court of the United States to look at possible reforms. In late 2021 the commission issued a report that suggest a term limit of 18 years would be ideal, with this term limit being implemented either through states ratifying a Constitutional amendment or simply through an act of Congress itself.
However, not all members of the commission believed that the idea of an 18-year term limit would be enough to curb the power of what they saw as a court that was increasingly partisan in favor of one political party. Instead, the suggestion was made that the number of justices needed to be expanded in order to return balance between the “Conservative” and “Liberal” factions. As of July 2022, President Biden had not proposed the commission's suggestion to Congress.
Supreme Court Decisions Do Not Have To Follow Public Opinion
As shown by the public protests over some of the court's recent decisions, most notably the overturning of Roe v. Wade and invalidating a 100+ year New York state law concerning who can carry concealed weapons, the Supreme Court's rulings do not have to align with public opinion.
In writing the majority opinion overturning Roe v. Wade, Justice Samuel Alito Jr. dismissed the idea that the court should consider public opinion when ruling on cases. He even quoted the late Supreme Court Chief Justice William H. Rehnquist, who once said: "The Judicial Branch derives its legitimacy not from following public opinion, but from deciding by its best lights.”
In the written opinion Alito Jr. went on to state that the Supreme Court couldn't assert that it had knowledge of how the general public would react to this ruling, but even if it did have such knowledge, “we would have no authority to let that knowledge influence our decision.”
Indeed, the way that the U.S. Constitution established the Supreme Court as an independent judiciary was meant to insulate the court from public opinion. Still, according to Maya Sen, a professor of public policy at Harvard who has tracked how the Supreme Court's decisions have aligned with public opinion, it has only been in recent years that the Supreme Court's decisions have really shifted away from what the general public wants:
“Up until a couple years ago, it used to be the case that where the court fell was well within the lines of the average Americans’ positions. Now we are estimating that the court falls more squarely in line with the average Republican, not the average American.”
The Supreme Court Decides Which Cases They Will Review
The Supreme Court has the power to determine whether it will hear a case, and it does not have to provide a reason for refusing to do so. As former Supreme Court Chief Justice William H. Rehnquist wrote in his book The Supreme Court: How It Was, How It Is, the decision whether to hear a case “strikes me as a rather subjective decision, made up in part of intuition and in part of legal judgment.”
The factors Rehnquist mentioned as factoring into this decision include: whether the legal question needs resolution by the Supreme Court because it has previously been decided differently by two lower courts; whether a lower court ruling conflicts with a previous ruling by the Supreme Court; and whether the legal issue could have significance beyond the two parties in the case.
Four Supreme Court justices have to vote in favor of accepting a petition for review and to schedule oral arguments in order for a case to be heard by the Supreme Court. But before the justices vote on any of these petitions, they are reviewed by the law clerks who work for the Supreme Court justices.
The law clerks weed out the petitions that they believe should be considered by the the justices. There is no minimum or maximum number of petitions to make it to this next stage. Behind closed doors, the justices review the legal memos that the clerks have written to summarize the petitions. Most of the petitions are dismissed, but the ones that are flagged by at least one justice will be discussed and then voted on. The vote is done by seniority, starting with the Chief Justice, and is a voice, rather than a written vote.
Once the voting is completed, a law clerk is given the justices' notes that will then be used to make a public announcement about the disposition of the cases considered that week.
Though it doesn't garner as much media attention as when the Supreme Court hears an important case, the Supreme Court's decision to not take a case can potentially have as much impact on federal and state policy.