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The Supreme Court as a Mirror of America

The Supreme Court of the United States seems a mysterious, distant institution. Its justices conduct their business in an imposing marble building; they don formal black robes to hear oral arguments and issue decisions; and they announce those decisions through the technical language of the law. On closer examination, however, this seemingly inscrutable institution of legal oracles turns out to be a uniquely human enterprise shaped by the personalities of its justices and by the disputes that constantly roil American society. Each case that comes before the Court is a unique slice of American life, not just an abstract legal matter, and the outcomes of these cases tell the story of the nation and its development. They also chronicle the institution’s successful struggle to secure its power to review the actions of the other branches of government, to establish its independence, and to settle conclusively what the Constitution means.

The high court is simultaneously the least and the most accessible branch of government. Unlike the President and Congress, the Supreme Court invariably explains its actions through written opinions. Since the Court’s founding in 1789 it has delivered enough opinions to fill more than five hundred fat volumes, known to us today as United States Reports. The justices reach those decisions through a process that involves open argument in court and intense media coverage. In almost every case, one justice speaks for the Court publicly, and his or her colleagues may concur or dissent with the decision, also publicly.

Still, the Court’s reputation for mystery is well deserved. It reaches its decisions through highly confidential meetings, called conferences, in which the justices discuss the cases before them out of public earshot. Secrecy is so strict that the justices have adopted rules that preclude even their clerks from attending these meetings. The newest court appointee has the task of sending out messages and guarding access to the conference. We know about what transpires in these conference sessions only through the fragmentary notes that a few justices have left behind.

Even the well-known practice of an individual justice writing and signing an opinion gives way at times. The justices in some instances may decide to issue an opinion per curiam, or “for the court.” Such an opinion is rendered either by the whole Court or a majority of it, rather than being attributed to an individual justice. This practice of issuing per curiam opinions means that the public cannot readily determine how the justices aligned themselves, adding to the mystery of the entire decision-making process. Early in the Court’s history such opinions were used to dispose of minor cases in a terse, summary fashion; more recently, they have also become vehicles for major opinions. For example, the Court issued one of its great and controversial twentieth-century First Amendment decisions, Brandenburg v. Ohio (1969), per curiam. So, too, was Bush v. Gore (2000), in which the justices decided who would be the next President of the United States.

The framers of the Constitution intended just such a mix of secrecy and accessibility. They meant the justices to be judges, not politicians subject to direct public pressure. The justices serve during good behavior, a virtual grant of life tenure. The President appoints them with the advice and consent of the Senate; they can be removed only through impeachment by the House of Representatives and conviction by the Senate for “Treason, Bribery, or other high Crimes and Misdemeanors.” Only one justice, Samuel Chase, has been impeached, but the vote to convict him fell short of the needed two-thirds majority.

The justices are insulated from politics in other ways as well. They do not have to stand for election. Their salaries cannot be diminished while they are in office. They alone decide when they will retire from the Court, even if they are infirm. They are, in the strongest sense of the term, agents of the law, whose ultimate responsibility is to uphold the Constitution without regard to political pressures or the standing of the people whose cases they decide. The words carved above the entrance of the Supreme Court building sum up its noblest ambitions: “Equal Justice under Law.”

The Court is distinctively American and has been since it first opened its doors for business in 1789. Alexis de Tocqueville, a French visitor to the United States during the early nineteenth century, was astonished by the new nation’s reliance on courts and judges. In his classic book Democracy in America, he wrote, “I am unaware that any nation on the globe has hitherto organized a judicial power in the same manner as the Americans . . . A more imposing judicial power was never constituted by a people.” In more recent times, Chief Justice Charles Evans Hughes, who served during the Great Depression of the 1930s, explained the unique nature of the Court by pointing to the justicies’ power to review acts of the other branches and, if necessary, overturn them. Only a few other courts in the world have powers in scope and operation similar to that of the U.S. Supreme Court; no other court figures so centrally in the life of its nation.

The Court was the most novel, yet least debated, institution to emerge from the Constitutional Convention of 1787. One reason that the delegates gathered in Philadelphia was to address the concern that rule of law—the concept that a nation should be governed by laws, not people—was under serious threat in the newly formed United States of America. The English government had a judiciary, but its judges did not hold tenure during good behavior; instead, they were effectively servants of the crown and, as a result, distrusted by many of the colonists. The colonies had courts of their own, but the final authority on legal matters rested with the distant Privy Council in London.

Moreover, under the Articles of Confederation, which were ratified in 1781 and represented the first attempt to establish a government for the new nation, there was no national judiciary; instead, state courts addressed almost all judicial matters, even those with national consequences. The framers of the Constitution, whose staunchest advocates were known as Federalists, wanted an independent judiciary capable of upholding standards of national law and restraining what they believed were the excesses of popular government. Thus, in Article 3 of the Constitution the delegates established a national judiciary, composed of one Supreme Court and as many lower federal courts as Congress wished.

The framers granted the new Supreme Court limited original jurisdiction (the power to hear cases in the first instances as a trial court) and left Congress to sketch the boundaries of its appellate jurisdiction (the power to hear cases on appeal from other courts). Article 3 provided that the power of the federal courts in general and the Supreme Court in particular extended to “all Cases, in Law and Equity, arising under the Constitution, the Laws of the United States, and Treaties . . . to Controversies to which the United States shall be a Party;—to Controversies between two or more states; [between a State and Citizens of another State] between Citizens of different States . . . “

The framers chose the words in Article 3 carefully. Particularly important was their decision to merge the concepts of law and equity under one set of courts and judges, a practice that departed from the English system. Law constituted the formal rules adopted by legislatures and courts; equity, on the other hand, consisted of ideas about justice that rested on principles of fairness and that were administered in the English system by chancellors. Colonial Americans were deeply suspicious of equity courts because they operated under the control of English governors and were, therefore, often highly political, and they were able to defeat rights, especially property rights, that were otherwise protected through the law.

The crucial purpose of Article 3 was to empower, not limit, the courts in general and the Supreme Court in particular. The framers gave the Court a power of decision equal to that, in its appropriate sphere, of Congress. Article 6 established that the Constitution was “the Supreme law of the land,” so by inference it followed that the Court, the nation’s primary legal body, was to be its most important interpreter, one authorized to overturn an act of a state court or legislature and perhaps to set aside an act by another branch of the federal government.

It was left to Congress to determine how many justices were to exercise that power. In theory, the Supreme Court could function with only two justices — the chief justice and an associate justice. Today, the number of justices stands at nine, where it has remained since 1837 except for a brief period during the Civil War and Reconstruction, when it was as low as eight and as high as ten. At its inception, the Court had six justices, a number dictated in part by the requirement that each of these justices perform his duties in one of the six circuit courts of the United States. These circuit court duties included conducting trials, making the justices into republican teachers who brought through their circuit riding the authority of the federal government to the distant states. Circuit riding also exposed the justices to local political sentiments and legal practices. The justices continued to ride circuit until 1911, when Congress formally ended the practice.

Throughout the nineteenth and into the early twentieth century, Presidents tried to make sure that each of the circuits and the associated region had a representative on the bench. The number of justices was reduced briefly in 1801 to five, with the temporary abolition of circuit riding, but the number reverted to six with the passage of a new judiciary act in 1802. The number of justices grew to seven in 1807, and the eighth and ninth justices were added in 1837. That number remained constant until 1866, when Congress, in an attempt to deny President Andrew Johnson a chance to appoint any new justices, provided that the Court’s number would decline by attrition to seven. The number dropped by one, to eight, and then the Judiciary Act of 1869 reestablished the number at nine. During the New Deal in the 1930s, President Franklin D. Roosevelt attempted unsuccessfully to expand the Court by as many as six new slots.

Whatever the number of justices, there is no constitutional requirement that they be lawyers, although all of them have been. Unlike the President, members of the Court can be foreign born, and several have been: James Wilson, James Iredell, David J. Brewer, George Sutherland, and Felix Frankfurter.

The Court has had several homes throughout its history. Until the Supreme Court moved into its present building in October 1935, it had always shared space with other government institutions. The Court held its first session at the Royal Exchange Building in New York City, which was also home to the lower house of the New York legislature. In December 1790 the nation’s capital moved to Philadelphia and the justices had space in the newly constructed city hall of Philadelphia. Pierre Charles L’Enfant had designed a building for the Court in the new capital city of Washington, D.C., but it was never erected, in part because Congress never deemed a new home for the justices as particularly important. The justices moved in 1801 to an unfurnished chamber on the first floor of the Capitol. After the British burned the Capitol at the end of the War of 1812, the Court operated from a rented house on Capitol Hill for two years, but then went back to the Capitol, where the justices remained until moving to their current home in 1935. The tortured journey of the Court to its new magisterial home is a reminder of its growing prestige in the American scheme of government.

The new building was the singular triumph of Chief Justice William Howard Taft, the only justice also to have served as President of the United States. Following the design of architect Cass Gilbert, the building was constructed of white marble, with a central portico and matching wings. The imposing “White Palace” has come to symbolize the power and independence of not just the justices but the entire judicial branch.

The Court’s most important business has always been exercised through its appellate jurisdiction. Again, this term simply means cases that have been heard and decided before they are brought—appealed—to the justices. For the first hundred years of the nation’s history Congress was wary of giving the Court too much responsibility, fearing in part that the justices might become too powerful. For example, through the Judiciary Act of 1789, Congress granted the Court power to hear cases and controversies appealed to it based on diversity jurisdiction. This concept, contained in Article 3 of the Constitution, means that in order for a case to come to the Court, the parties to it must be from different, or diverse, states. Congress in 1789 could have granted the Court greater power by designating that it could hear any case—even if the parties were from the same state. The framers of the Constitution had also provided that Congress could specify that the justices could hear cases “arising under” the Constitution, but the members of the First Congress decided not to invoke the broader power that these words in Article 3 conveyed.

Since then, Congress has not only significantly expanded the Court’s jurisdiction but has also given it greater discretion in deciding which cases to hear. The Court has increasingly moved from one that decided cases it had to, to a court that decided those cases it wanted to. In the early years of the Court, the justices typically heard cases based on a mandatory writ of error, an assertion by a plaintiff that a lower court had made a mistake of law. The justices were required to hear these cases. Not surprisingly, as the nation expanded, the docket of the high court grew dramatically. In the first ten years of the new nation, the justices heard just one hundred cases, but by the 1880s they were drowning, hearing and deciding more than six hundred cases a year.

Beginning in the late 1890s and gaining momentum in the 1920s, Congress granted the justices far more discretion over their docket. One of the most important steps was the Judiciary Act of 1925, a measure for which Chief Justice Taft lobbied intensively. It broadened the use of the writ of certiorari and brought an immediate decline in the numbers of cases heard and decided by the justices.

The law often relies on Latin words to convey meaning. For example, the word “writ” means a formal written order by a court commanding someone to do something or to refrain from doing something. Certiorari is a Latin word that means “to ascertain” or, more liberally translated, “to make more certain.”

The words are important because this particular writ, or order, is meant to bring cases to the Court that will make the law more certain in areas where there is conflict. But as Tocqueville so wisely reminded us, the resolution of conflicting legal interpretations almost always has political repercussions. Through this writ a petitioner comes to the Court and asks that the justices order a case to be heard. The writ is discretionary; the Court is not required to issue it or hear a case from anyone seeking such a writ. There are more than seven thousand petitions for “cert” sent to the Supreme Court annually. Only a handful—less than 2 percent—of these are accepted; the others are usually dismissed, almost always without written comment, leaving the parties to wonder why their plea for justice went unanswered. When that happens, the law stands as it was before. The denial of a writ of certiorari does not mean that the Court has decided that the lower court was correct; it only indicates that the justices are unwilling to make a decision, although as a matter of law the decision below stands.

The expanded use of the writ of certiorari and the declining use of the writ of error have helped the justices better manage their caseload. In recent years, the Court has decided as few as seventy cases a term, compared with the hundreds that it was deciding through most of the twentieth century. Moreover, with fewer cases to decide the justices are able to devote more time to the ones that they do decide. Throughout its history the Court has been important in resolving disputes, but it has become even more important in addressing major political issues, such the limits of free speech, the boundaries of church-state relations, and reproductive rights. The Court can choose which cases it wishes to hear, and that means the justices can have an even deeper influence on the particular issues they do address, such as the rights of criminal defendants. And even when the justices refuse to hear a case they shape public policy by leaving the law to stand as it was. The broadened use of the writ of certiorari has permitted the Court to emerge as a tribunal of constitutional and statutory interpretation rather than as a mere forum to resolve disputes among parties making competing claims under the Constitution.

The Court has also further refined the rules that it imposes when considering which cases to decide. The most important of these is justiciability. That term entails an important principle: the justices will hear and decide only those disputes that are subject to being resolved through the judicial process. The Court’s actions have political consequences, but the Court itself should not be overtly political. The rule of justiciability is the Court’s way of deflecting those cases that seek to use it as a political rather than a legal tool. To be justiciable the dispute must present a real case and controversy, the parties to it must have a direct interest in it (called standing), it must be ready for decision (ripeness), and it must not have already been decided by other actions (mootness). For example, the Supreme Court, although not explicitly prohibited from rendering advisory opinions, early in its history decided that it would not do so. The justices reasoned that their future influence depended on being a court of law rather than a political forum.

The justices have also resisted hearing collusive suits (suits in which the parties conspire to bring a case before the Court) and ones that raise political questions (that is, questions better settled by the elected branches). As the contested role of the Court in the 2000 Presidential election between George W. Bush and Al Gore reminds us, the political questions doctrine has itself become the subject of controversy. In the 2000 election, the Court decided by a narrow margin that Al Gore, although he had won the popular vote nationally, could not have officials in Florida perform a recount of the ballots there to see whether he had captured that state’s electoral votes. The Court’s per curiam opinion made Bush the President of the United States. Critics charged that the Court was never intended to resolve such weighty political matters as who should be President and that the justices should never have agreed to hear the case in the first place.

These rules underscore that the Supreme Court is first and foremost a legal institution. Cases have to come to it; it cannot go looking for parties to plead cases of interest to the justices. Those who do appear must argue through the conventional processes of the law, including the use of the important concept stare decisis (literally, “let the decision stand”), or precedent. This idea holds that the justices should extend respect to previous decisions made by the Court as a way of promoting constitutional stability and certainty.

Controversy and constitutional change, however, have gone hand in hand on the Court. The Court is a place where advocates for conflicting political, social, economic, and cultural demands seek the blessing of the justices. Once again, Tocqueville had a critical insight. “Scarcely any political question arises in the United States that is not resolved, sooner or later,” he observed, “into a judicial question.” Americans generally and their political leaders especially have willingly transformed divisive political disputes—whether over slavery, the hours of work of men and women, the practice of segregation by race, or abortion—into constitutional conflicts. The Court’s constitutional decisions, then, reflect the society it serves. Justice Oliver Wendell Holmes Jr. summed up matters nicely when he described the law as a “magic mirror” that reflected the assumptions, attitudes, and priorities of each generation. In that light, the Court can be thought of as the hand holding and turning that mirror. For example, through the nineteenth century, issues involving speech, press, church-state relations, and civil rights drew little attention from the justices. In the twentieth century, on the other hand, just such concerns have framed central conflicts in American society and dominated the Court’s docket.

The Court’s history has moved through clear phases or epochs. The first of these ran from the English founding in 1607 through the Constitutional Convention in 1787. Though neither the Court nor the Constitution existed, these years were nevertheless critical to establishing broad constitutional principles that endure to this day and to which the Court often turns. These included the value of a written constitution, the doctrine of limited government, the concept of federalism, and the idea of separation of powers.

From the nation’s founding in 1787 through the end of Reconstruction in 1877, the most crucial constitutional issues were framed as conflicts between the states and the nation. These included disputes about the power of the federal courts in relation to their counterparts in the states, the power of the national government to regulate commerce, the right of property holders to remain free of regulation by either state or federal governments, and the expansion of slavery into the new territories and states. The struggle over state versus federal authority culminated in the secession movement, the Civil War, and Reconstruction. The constitutional legacy of the era appeared dramatically in the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution. Of these, the Fourteenth, through its due process, equal protection, and state action clauses, reframed the work of the high court for the following century and a quarter in the areas of civil liberties and civil rights.

Among the most pressing issues in America from 1877 to 1937 were industrialization and immigration. Industrialization raised new questions about the role of government in regulating the conditions of labor, the rights of laborers to organize, the rights of corporations to control and use their capital, and the appropriateness of government intervention in the marketplace. The First World War brought a direct challenge to the civil liberties of Americans and the first sustained debate in the Court about the scope of freedom of speech and press. Equally important, a wave of immigration and a newly freed black population raised questions about the authority of government to regulate social change. The justices were forced to fit a document crafted in the eighteenth century to the realities of the industrial market economy of the late nineteenth and early twentieth centuries.

Initially, the justices gave preference to the rights of property holders, raised strong objections to government involvement in the marketplace, and viewed corporations more favorably than unions in the struggle between capital and labor. The Great Depression, however, placed increasing pressure on government to take an active role in the economy. The Court raised constitutional objections to many of President Franklin D. Roosevelt’s solutions to the massive economic dislocation caused by the depression. In the face of FDR’s proposal to pack the Court, the justices in 1937 retreated from their strong objections to government involvement in the economy and signaled their support for both state and federal initiatives designed to bolster the well-being of Americans.

After 1937 the Court again shifted gears, this time placing an emphasis on equality and such human rights as freedom of conscience, expression, and privacy. The emergence of the nation onto the world stage also posed new questions about the scope of Presidential power. The Second World War and then the Cold War, along with conflicts from Korea, to Vietnam, to Iraq, were accompanied by increasingly bold assertions about the authority of the chief executive in time of war. Moreover, the emergence of a national civil rights movement for African Americans, Native Americans, and Latinos, along with the emergence of feminism, tested the boundaries of long-accepted discriminatory practices in housing, employment, schooling, jury service, the right to hold and seek office, and the administration of the death penalty. It also produced a powerful counter-reaction from groups that believed the state should not engage in programs such as affirmative action that were designed to favor one group over another as a way of ameliorating the consequences of past discrimination.

These eras of the Court remind us of how the Court has mirrored the times while trying to administer the rule of law. That makes any determination about the most important cases in the history of the Court a challenge. Lawyers interested in serving the immediate needs of their clients might find the most important cases to be those that address a current point of constitutional law. Historians, on the other hand, may search for the impact of the Court over time, attempting to explain how crucial decisions have shaped and been shaped by conflicts in American society. Throughout these various epochs of its history, the Court has developed routine processes by which to dispatch its business.

The modern Court has settled on an established routine for its operations. The justices begin their term the first Monday in October and continue through the third week of June. They meet twice a week, typically on Wednesday afternoon, to hear cases argued on the previous Monday, and on Friday to hear cases argued on Tuesday and Wednesday. At these conferences they screen petitions, deliberate on cases that have been argued, and transact miscellaneous business. They do so in a paneled conference room to which they are summoned by a buzzer. Tradition requires that the justices exchange handshakes and then take preassigned seats around a long table with the chief justice at one end and the senior associate justice at the other end. Once the door closes the conference begins and no other person may enter.

The chief justice presides over the conference, making him first among equals and providing an important opportunity to exercise leadership. The chief directs the justices to consider the certiorari petitions that at least one of the justices considers worthy. Indeed, one of the chief ’s duties is to indicate to his colleagues why a particular petition should be considered on its merits. If four of the justices conclude that a case on this “discuss list” is sufficiently important, it will be added to the Court’s docket for full briefing and oral argument. After the chief speaks, the other eight justices comment in order of seniority.

The chief is responsible for leading the discussion of cases that have been argued. He will start with a review of the facts in the case, its history, and the relevant legal precedent. In descending order of seniority, the other justices then present their views. The justices typically signal how they will likely vote on the case and on that basis the chief justice tallies the vote. If the chief justice is in the majority he will assign responsibility for preparing an opinion; if he is not, then the senior justice in the majority assumes that role. The greatest of the chief justices have used their power to assign opinions to shape the overall direction of the Court.

The conference is a critical stage in the development of the Court’s work, but it is not the end of the process. The justice assigned to prepare an opinion will often work through several drafts, sharing her or his work with colleagues and invariably revising and refining the opinion in response to their comments. An important part of the Court’s work is the informal interaction among the justices as they develop an opinion. A justice’s opinion may well change through the process, and in especially difficult cases maintaining a majority can be challenging. The deliberations that began with the conference continue until the Court announces its decision, a process that can take months.

When the Court convenes in public, the justices sit according to seniority. The chief justice is in the center and the associate justices are on alternating sides, with the most senior associate justice on the chief justice’s immediate right. The most junior member of the Court is seated on the left farthest from the chief justice.

To assist them through this process the justices have law clerks. The practice of hiring law clerks began in 1882 when Justice Horace Gray hired a Harvard Law School graduate to assist him with his work on the Court. Today, a justice may have as many as seven clerks, who come from a pool of about 350 applicants to each justice, who has total control over whom is selected. Most of these clerks are graduates of prestigious law schools with extraordinary academic records who have usually clerked for a lower federal court judge. Their duties include reading, analyzing, and preparing memoranda for the justices and assisting in preparing opinions. Thirty-three clerks have gone on to become justices. They are today the most important of the Court’s support staff, without whom the justices could not conduct their business.

Over the course of more than two centuries the justices have issued thousands of opinions. Culling from this long list the handful of decisions that represent pivotal moments in the Court’s impact on American life is more an art than a science. With that consideration in mind, we have applied several general criteria. First, the Court’s decision had to be a response to a pivotal public issue, which had a deep and abiding impact on the course of U.S. history. The Dred Scott case, for example, represents dead law. No lawyer today would attempt to defend a client based on the Court’s actions. Still, the decision was a milestone in the history of the nation with regard to slavery. Second, a case must have overturned a significant precedent and thereby acted as a catalyst for political and social change. The benchmark case of Brown v. Board of Education (1954, 1955) signaled an end to segregation by race and opened a new chapter in the history of civil rights. Third, the Court’s decision must include memorable and edifying statements of enduring American constitutional principles expressed in opinions of justices either for the Court or in dissent. The opinion of Chief Justice John Marshall in McCulloch v. Maryland (1819), for example, continues to resonate today because of Marshall’s approach to the question of the powers of Congress and the Court and the memorable words with which he framed his opinion (for example, “the power to tax, is the power to destroy”). We likewise turn to Justice John Marshall Harlan’s dissent in Plessey v. Ferguson (1896) precisely because it so forcefully rejected the majority’s view that race relations could never change.

Fourth, the Court’s decision must have been a definitive or illuminating response to an issue about a core principle of American constitutionalism, such as federalism, separation of powers, checks and balances, civil liberties, or civil rights. The justices’ decision in United States v. Nixon (1974) dealt with the fundamental idea that the President is not above the law and the belief that the Court has a duty to establish the outer boundaries of executive privilege. Fifth, the Court’s decision in some way must be included in the content standards or curricular frameworks of state departments of education, an indicator of the case’s importance in cultivating standards of civic education.

Sixth, and finally, we have selected cases that tell compelling stories about the personal courage required to bring and sustain a case before the high court, whether on the winning or the losing side.

We also settled on this list of cases because individually and collectively each of them contributed to the dramatic rise in the high court’s powers. Not all Americans have agreed with the Court’s decisions; indeed, not all Americans agree that the Court should have the final word in saying what the Constitution means. The debates about the justices’ powers today stand in sharp relief from the promise made by Alexander Hamilton in The Federalist No. 78 that the Court would be the “least dangerous branch” to the liberties of Americans. What has emerged is a powerful national institution that has through its history staked out the right to review the constitutionality of the actions of the other branches of federal government and of state governments. This power of judicial review, nowhere explicitly specified in the Constitution, has been a flashpoint for controversy. That power, however, could not have been exercised had the justices not also achieved independence from direct popular and political pressure. But, most important, the Court has fostered successfully the concept of judicial sovereignty. This idea holds, in simple terms, that what the Court says the Constitution means is what it means; its power to interpret the Constitution is final, unless and until it is amended by the people.

No matter how one feels about the current power exercised by the justices, there is no disputing that historically they have played and continue to play an extraordinary role in American life. The United States has had only one national constitutional convention, in part because the Supreme Court has emerged as a kind of continuing constitutional convention, adjusting and modifying the ruling document to suit changing demands. Each case in this volume reminds us of how central the development of judicial review, judicial independence, and judicial sovereignty have been not only to the fate of the Court but to our entire constitutional experiment. As Justice Holmes might have noted, the Supreme Court has been a mirror of America.