Supreme Court Essay ⋆ Political Science Essay Examples ⋆ EssayEmpire

Courts of “last resort,” or “supreme” courts, derive from the idea that law, rather than politics or standing in a community, is the basis for the authority of government. The U.S. Supreme Court is an expression of this belief, as are similar courts worldwide, including those in Canada and South Africa. This institutional structure is particularly evident in political systems based on a written constitution. Systems in which courts are supreme—in the sense that they are the “last word” on the country’s constitution—are often distinguished from parliamentary systems, such as the one found in the United Kingdom. In these systems, the parliament is the ultimate arbiter of political questions. Canada is somewhat of a unique case—it has been shifting from the parliamentary model to the model of a supreme court with its “repatriation” of the constitution of the United Kingdom.

The U.S. Supreme Court is an appellate court alone at the top of the judicial process in the United States. It has authority not only over the federal courts but also over the state courts. The Court is the final venue of appeal for the enormous number of cases generated in the United States. A rough estimate of the number of these cases would be approximately ten million per year. Of these, approximately three hundred thousand are appealed to the higher courts in the states and in the federal system. About five thousand of these eventually reach the Supreme Court, but the justices actually choose fewer than one hundred cases on which to comment extensively. There are many theories about why certain cases are chosen and others are not, although it is clear that the cases have to be of interest to the justices and usually of some general significance.

Some have been joked that the Supreme Court is not final because it is infallible, but that it is infallible because it is final. Certainly, given its final say in legal matters, the Court has come to be viewed as special. When Americans are serious about a dispute, they say they are going to take the case “all the way to the Supreme Court.” Because the Supreme Court is the last official word on the U.S. Constitution, short of a constitutional change through formal amendment, it deserves careful attention. However, the Court addresses relatively few cases, meaning that individuals must turn to a variety of other less visible sources of constitutional law for precedence and answers.

Functions

The Supreme Court can be distinguished from other courts by several unique, specific functions. Most courts are primarily engaged in the resolution of conflict, but the Supreme Court is known to make policy and is, therefore, a source of constitutional law. In this sense, the “Constitution,” understood to be the basis for U.S. law, is not primarily a historical document and series of amendments, but rather the product of judicial choices that construct the ongoing meaning and significance of the original document. The justices transform the law while applying it in individual cases.

As part of two legal systems, the federal and the state, the Supreme Court is the court of last resort. The justices are appointed by the president, and they are paid from the National Treasury. They serve as long as they exhibit good behavior, which in practice has meant tenure for life, and a decision to retire from this institution becomes a policy decision of some significance. The selection process is political, and a nominee’s political party activity may influence the appointment decision. The president does not always get his first choice to fill a vacancy, however. This was the case in 2005 for President George W. Bush, whose first nominee to replace retiring justice Sandra Day O’Connor, Harriet Miers, withdrew amid controversy over her qualifications. This failed nomination was followed by the successful nomination of a more experienced jurist, Samuel Alito.

The Supreme Court has appellate jurisdiction in addition to original jurisdiction in “cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party” (U.S. Constitution, Article III, Section 2). Congress sets the basic regulations and makes changes in the Court’s appellate jurisdiction. Although direct limitation of the Court in substantive areas is difficult, in the early 1980s there were as many as thirty bills pending in each legislative session that sought to limit the Court’s authority. Up until the 1920s, the justices had little discretion in the cases they took. Since then, they have been able to choose from among the thousands of appeals that come to them. This gives the justices the opportunity to influence the Court’s docket (calendar) and to take a more active role in setting its agenda than courts usually have. In addition, statements in judicial opinions and occasional public statements by the justices may stimulate appeals by indicating judicial predispositions to decide particular issues. For example, the exclusionary rule, which prohibits the use of illegally obtained evidence, has been the subject of criticism by members of the Supreme Court since the 1970s. Challenges to the rule have been looked on favorably, although it has not been eliminated.

The Supreme Court’s role in interpreting and applying constitutional law is a focus for debates over the meaning of the Constitution. In the twentieth century the Court realigned its political orientation more than once. As part of the struggle over New Deal reforms in the 1930s, a conservative Court was transformed by political appointments and pressure from President Franklin Roosevelt. This transformation was expanded in 1953 with the advent of the Warren Court and its dramatic decision in Brown v. Board of Education a year later, which signaled a shift in the federal/state relationship in regard to racial and other forms of discrimination. By the end of the century, the Court was experiencing a slow shift back to the right that began with President Richard Nixon’s appointment of four justices. With President Ronald Reagan’s appointment of Justice O’Connor and the subsequent elevation of Antonin Scalia, Anthony Kennedy, and William Rehnquist, the Court took on a solid conservative caste. The evolution to moderate or liberal positions by justices such as David Souter and John Paul Stevens and the appointments of Ruth Bader Ginsburg and Stephen Beyer by President Bill Clinton created a political mix again and a decisional turbulence that is likely to last for some time. Many recent appointments have simply continued past political arrangements. William Rehnquist was replaced by his former clerk, John G. Roberts Jr. in 2005. President Barack Obama appointed Sonia Sotomayor to replace Souter and nominated Elena Kagan to replace Stevens in 2010. The appointments of Sotomayor and Kagan (if confirmed) are not likely to change the overall political dynamic because they are replacing older justices who anchored the “liberal” wing of the Court.

Judicial Review

The distinctive feature of the Supreme Court’s power is judicial review. This refers to judges applying the Constitution to ordinary law made by the executive or Congress or in the states. The practice of judicial review gives great weight to these judicial interpretations of the Constitution. In this sense, the convention in America has been to equate judicial review with judicial supremacy, the idea that the Supreme Court has the final word on the Constitution. The two practices will be distinguished here to highlight recent debates in constitutional interpretation.

The classic statement of judicial review is in Marbury v. Madison (1803). The case involved the status of judicial appointments in the last days of John Adams’s administration. After President Adams was defeated by Thomas Jefferson, the lame duck Congress, dominated by members of Adams’s Federalist Party, created a number of new judgeships. The measure was hastily signed by the president, and some of the appointment papers were not delivered before Jefferson took office. One of the designees, William Marbury, sued in federal court to have James Madison, secretary of state in the new administration, deliver the papers. The case reached the Supreme Court, where newly appointed Federalist justice, John Marshall, presided. Marshall had been secretary of state during the Adams administration and by present standards of judicial conduct should have recused himself, that is, declined to hear the case because of a conflict of interest. Instead, Marshall took the opportunity to offer a sweeping claim for the power of judges to void those acts of Congress that conflict with the Constitution. His argument drew from Article III, specifically, “the supreme court shall have original jurisdiction in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party. In all other cases, the supreme court shall have appellate jurisdiction.” By Marshall’s analysis, Congress could only add to the appellate, not the original jurisdiction of the Court.

Marshall went on to ask, rhetorically, “If an act of the legislature, repugnant to the constitution, is void, does it, notwithstanding its invalidity, bind the courts, and oblige them to give it effect?” His answer to this question is what has made the case a touchstone of American constitutional law. Marshall held, “It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.» Therefore, while the Court had ruled that Marbury was entitled to his commission, Marshall was saying that it was the Supreme Court that determined what was or wasn’t a constitutional law—and a law that gave the Supreme Court the power to rule on the case in the first place was against the U.S. Constitution. As a result, the Supreme Court did not have the power to make Madison give Marbury his commission.

That same year Congress shut the Court down for a year by changing the date of its sessions. This may have been to keep it from ruling on the validity of the repeal of the Federalist Judiciary Act of 1801. The debate surfaced again in 1832 in President Andrew Jackson’s veto of a bill to re-charter the country’s national bank, even after the Supreme Court had ruled in 1819 that the bank was constitutional. Jackson offered as a basis for his veto the proposition that the legislation was unconstitutional. Calling “mere precedent a dangerous source of authority,” he referred to opposition in various branches of the state legislatures as well as his own (Jackson, “Veto of Legislation Chartering the Bank of the United States, 1832” in American legal history: cases and materials. 161)

Similar commentary is evident in Abraham Lincoln’s First Inaugural Address in 1861 and in Franklin Roosevelt’s Speech on Reorganizing the Judiciary in 1937. Each speaks to the right of the chief executive to contribute to constitutional interpretation. Lincoln, like Jackson, engaged with the Court and the people in a discussion of the meaning of constitutional law. Roosevelt’s plan for a more youthful and sensitive

Supreme Court included putting one new justice on the Court for everyone who reaches the age of 70 and was seen as heavily partisan. In fact, though he demurred from referring to this as “court packing,” that is the term by which it has come to be known.

These efforts by eminent U.S. presidents are often forgotten in the Court’s own argument as to its authority. Culminating in Cooper v. Aaron in 1958, the justices of the Supreme Court and many commentators came to accept a “judicial supremacy. «Yet, it is hard to look at the abortion controversy in the United States since 1973 and believe the Court is the last word on the Constitution in every case. This issue has been taken up by such scholars as Walter Murphy, Louis Fisher, and Susan Burgess. While conventional wisdom places the Supreme Court at the apex of constitutional interpretation, the work being done by these scholars, as well as tension between the Supreme Court and other political branches, continues to raise questions about the nature of the Supreme Court’s claim as final arbiter.

It has long been held that, as judges in a democracy, the justice of the Supreme Court in the United States maintain or lessen that body’s authority depending on how its judgment is perceived. One way judgment is assessed is in terms of whether the Court is responsive to the times in which it lives. Another is the special commentary by professional students of the Court. When these tendencies are in line, the authority of the Court is secure; when they fall into conflict or become misaligned that authority may be jeopardized.

Institutional Ideologies

Supreme courts in democracies face the challenge of justifying their role in politics. This is done through institutional rules or norms and interpretive frameworks. Rules include the expectation that cases be brought to the court, that is, the justices not seek business. In some countries, supreme court justices serve in advisory capacities on boards and commissions. In the United States this is rare. One exception was the commission investigating the assassination of President John F. Kennedy, which was chaired by Chief Justice Earl Warren. The perception that justices are the recipients of questions rather than generating them is important. One of the key features of the controversial decision in Bush v. Gore, which determined the outcome of the 2000 U.S. presidential election, was that the Supreme Court was considered the “end of the line” and its judgment was necessary to avoid a “constitutional crisis.”

Interpretive frameworks are also important for establishing the legitimacy of judicial holdings, particularly in controversial cases. One justification for change is the idea that the U.S. Constitution is a “living document,” and it is necessary for the justices of the Supreme Court to intervene and keep it up to date. Decisions based on this philosophy are associated with the “Due Process Revolution” of the 1960s, wherein the Supreme Court established the reach of the Bill of Rights and its promise of legal counsel and protection against cruel and unusual punishment. Another idea is that the justices simply apply the text of the Constitution to the cases at hand as the original Founders would. That is, that they do not add anything to bring the Constitution up to date. Many scholars and legal professionals point to cases that developed a legal right to privacy as being in violation of this idea because the word privacy is not in the text of the Constitution.

The Future

Some social scientists and legal historians have turned away from the pronouncements of the Supreme Court and that of the other appellate courts, characterizing these holdings as atypical and unrepresentative of legal activity in the United States. For example, a generation ago Morton Horwitz considered constitutional law to be “episodic” and “buttressed by a rhetorical tradition that is often an unreliable guide to . . . legal change in America.” (1977: xii). Due at least in part to this criticism of excessive attention given to appellate courts, there has been more attention to other things in recent years. This includes attention to the law in action, to the political behavior of judges, to the rulings of intermediate courts and local trial courts, and to the impact of judicial decisions in the community. The turn from the study of appellate courts among social scientists began as a healthy reaction to the perhaps excessive attention to appellate decisions in the law schools but may have led to the belief that there was little reason to study high courts at all.

For social scientists, there are many reasons to study the Supreme Court. The tradition of commentary on the Constitution is, among other things, an excellent guide to national ideology. Although appellate court opinions are not representative of the mass of legal or even judicial activity, these opinions are authoritative attempts to relate legal concepts to changing social and political conditions. And, if they are opinions of the Supreme Court, they get a great deal of attention. The resulting commentary attempts to reconcile contemporary issues and values with tradition. By revealing what the government thinks about itself, the opinions of the Supreme Court constitute a running commentary on fundamental political concepts. From this body of discourse, the student can observe change and/or continuity and examine the judicial contribution to the structure of U.S. Politics.

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