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Article III of the U.S. Constitution 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.” While the Constitution establishes a Supreme Court, it does little to describe what the Court will look like or what it will do. Nevertheless, the Supreme Court has developed over time to become a key player in the U.S. policy process.

Composition And Function Of The Court

With respect to composition, the Constitution provides that the justices of the U.S. Supreme Court will be appointed by the president, with the advice and consent of the Senate, and absent some malfeasance in office (which might result in their impeachment), they enjoy life tenure. As a result, appointing Supreme Court justices provides presidents with an opportunity to leave an enduring policy legacy; William Rehnquist was appointed by Republican president Richard Nixon in 1972, yet he remained a strong conservative force on the Court until his death in 2005.

The number of members of the Supreme Court is determined by statute rather than spelled out in the Constitution. During the first century of the Court’s history, the number of justices varied from five to ten. In 1869, the number was set at nine, and it has held constant ever since.

Of the nine members, eight are associate justices and one serves as the chief justice. The position of chief justice must be filled specifically by the president. Thus, when Chief Justice Warren Burger retired in 1986, President Ronald Reagan nominated William Rehnquist—who was already serving as an associate justice—to the position of chief justice; although the Senate had confirmed Rehnquist as an associate justice in 1972, they had to confirm him as chief justice again in 1986.

People sometimes refer to the chief justice as “first among equals.” The chief justice’s vote does not count more than that of any other justice. However, regardless of his actual time served on the Court, he automatically has more seniority than any associate justice. As a result, he speaks first at conferences—meetings to discuss the merits of cases—and, if the chief justice is in the majority, he determines who will write the Court’s opinion. The position of chief justice also entails some additional administrative and ceremonial responsibilities.

With respect to function, the Constitution provides that the Supreme Court has original jurisdiction—the ability to hear the case first, before any other court—overdisputes between states, disputes between states and the federal government, and cases involving foreign diplomats. In all other cases, the Supreme Court exercises appellate jurisdiction; that is, it can only review the decision of another court. Because fact-finding is generally relegated to trial courts—courts with original jurisdiction—the Supreme Court is generally limited to resolving disputes over the meaning and application of the law.

Among the cases over which the Supreme Court exercises appellate jurisdiction, the overwhelming majority are brought to the Court through a petition for a writ of certiorari. The Court has complete discretion over whether to grant the petition and hear the case or not. Indeed, the Supreme Court grants relatively few of the petitions filed with it. During the Court’s 2002 term, 8,225 cases (including appeals, original jurisdiction cases, and extraordinary writs) were brought before the Supreme Court, yet the Court granted full review to fewer than 100.

A significant body of scholarship is devoted to determining how and why the Court chooses which cases it will hear. Empirical evidence suggests that the Court chooses to hear cases that give it the greatest opportunity to make policy: cases that present significant legal issues that will have broad impact on the legal landscape and, in particular, cases the court below decided “wrongly.” In other words, as long as the state and lower federal courts are deciding legal issues in a way that is consistent with the policy and legal preferences of the Supreme Court justices, the justices will generally let those lower court decisions stand. The Court is far more likely to accept a case to correct a perceived error on the part of the lower courts.

Judicial Review And U.S. Policy

While determining who wins and who loses legal disputes is arguably an inherently political activity, the U.S. Supreme Court plays its most active role in the American political process when it exercises judicial review. Judicial review is the power to evaluate whether state and federal government actions, both legislative and executive, comport with the Constitution and, if they do not, declare those actions void.

The U.S. Supreme Court first exercised judicial review in the 1803 case of Marbury v. Madison. In February 1801, outgoing president John Adams signed a number of judicial commissions, but his secretary of state, John Marshall, did not deliver them before the end of Adams’s term. When the new president, Thomas Jefferson, took office, his secretary of state, James Madison, refused to deliver the commissions. William Marbury, one of the individuals who did not receive his commission, brought a claim directly to the U.S. Supreme Court. Interestingly, by this point, John Marshall had taken office as the chief justice of the Supreme Court.

Marbury brought his claim directly to the Supreme Court because a provision of the Judiciary Act of 1789 gave the Supreme Court the power of original jurisdiction over such matters. When the Supreme Court finally issued its decision in 1803, Chief Justice John Marshall concluded that the Court could not compel the president to deliver the commission to Marbury because Congress could not expand the Supreme Court’s original jurisdiction beyond that described in the Constitution. The Court was unable to help Marbury, but it achieved its result by declaring an act of Congress unconstitutional and void.

The Marbury decision was relatively uncontroversial when it was issued. Chief Justice Marshall made it clear that the Court’s role in exercising judicial review was limited to making legal, rather than political, determinations. In its earliest incarnation, judicial review was considered an almost ministerial function that gave the Court relatively little policymaking prerogative. As time passed, however, the potential for policymaking through the exercise of judicial review became clear.

In the late 1920s and early 1930s, the full power of judicial review was revealed. Specifically, as Congress began to pass social legislation in response to the Progressive movement and as President Franklin Roosevelt began to implement his New Deal economic policies, the Supreme Court stood squarely in the way of elected-branch policymaking. The Court issued a number of decisions striking down social and economic legislation on the grounds that it violated constitutional notions of federalism and individual liberty.

In 1937, following a string of Supreme Court decisions striking down New Deal programs, Roosevelt proposed a plan to “pack” the Court: On the pretext of assisting an overworked and elderly Supreme Court, Roosevelt proposed creating a new seat on the Supreme Court for every justice who was seventy years old or older and who remained on the Court. The result would have been to add six new seats, and those seats would, of course, be filled by judges friendly to Roosevelt’s New Deal programs.

Within weeks of Roosevelt’s proposal, Justice Owens Roberts abandoned the Court’s anti-New Deal faction to create a narrow majority that supported the constitutionality of Roosevelt’s programs. Roberts’s apparent about-face is often referred to as the “switch in time that saved nine” because his change in position helped preserve the nine-member Supreme Court. Historical examination of the Court’s deliberations from this time period indicate that Roberts had cast his pro-New Deal votes on the cases in question weeks before Roosevelt announced his plan; in other words, the coincidence between the threat to pack the Court and Roberts’s change of position was just that—a coincidence.

Still, the Court’s ability to stall implementation of significant social and economic programs highlights the potential of judicial review as a political force. Moreover, the shift in Supreme Court policy during the 1930s emphasizes the amount of discretion that the Court has in interpreting the Constitution. Although Chief Justice Marshall described judicial review as a mechanical application of clear legal principles, the events surrounding the New Deal demonstrate the extent to which the Constitution is subject to a wide range of interpretation. Indeed, since the 1930s, there has been an increasing awareness of the political implications of Supreme Court membership, and the nomination and confirmation process has become quite politically charged.

Any lingering doubt about the political dimension of the Court’s exercise of judicial review was dispelled during the tenure of Chief Justice Earl Warren. Warren was appointed by a conservative president—Dwight Eisenhower—but his time on the Court was marked by a clear liberal agenda. Warren was particularly interested in expanding the rights of criminal defendants, and his time on the Court is marked by numerous decisions that broadly construe the individual rights the Constitution guarantees to criminal defendants.

Among the cases that make up Chief Justice Warren’s legacy are Miranda v. Arizona (1966) and Gideon v. Wainwright (1963). In Miranda, the Supreme Court held that the Fifth Amendment protection against self-incrim-ination requires police to inform any criminal suspect in their custody of their constitutional rights; specifically, Miranda requires the police to inform suspects in custody that they have the right to remain silent and decline to answer any questions. The Miranda decision is particularly striking because it delves into the nuts and bolts of police procedure, setting fairly “bright line” requirements for the policy to follow.

In Gideon v. Wainwright (1963), the Supreme Court ruled that the Sixth Amendment guarantee of effective assistance of counsel requires states to provide attorneys to indigent criminal defendants. In other words, the state must pay attorneys to represent criminal defendants who are too poor to hire attorneys on their own. Implementation of the Gideon decision has imposed considerable financial burdens on the states.

Both the Gideon and Miranda decisions reflect Chief Justice Warren’s personal ideological agenda. First, both decisions give higher priority to the rights of the individual than to the rights of the state; procedural and financial burdens placed on government take second chair to the rights guaranteed individuals by the Constitution. Second, both decisions reflect Warren’s belief that the U.S. Supreme Court plays a counter majoritarian role in U.S. politics. While the legislative and executive branchesrespond to the will of the majority, Warren (and many others) viewed the courts as providing a voice and a forum to those who are socially marginalized, such as the poor.

The Supreme Court And Constitutional Dialogue

Two politically charged issues—race and abortion—highlight both the political aspect of judicial review and the role of the Supreme Court in a broader political dialogue. In both issue areas, the Supreme Court has played a key role in setting U.S. policy. Yet in both issues, the constraints placed on the Court and the dialogue between the Court and other political actors is apparent.

In 1857, the Supreme Court issued a decision in the case of Scott v. Sandford (better known as the ” Dred Scott decision”). Legally, Dred Scott was a significant statement about the importance of states’ rights. Politically, however, Dred Scott was important because the Court held, essentially, that even emancipated slaves could not be full citizens of the United States. In an already tumultuous political climate, the Dred Scott decision became a rallying point for abolitionists and contributed to the outbreak of the U.S. Civil War and, ultimately, to the enactment of the Fourteenth Amendment’s guarantee of equal protection of the laws.

In Plessy v. Ferguson (1896), the Court considered a Louisiana statute that required separation of the races on all railroads. In finding that the Louisiana statute did not violate the Fourteenth Amendment, the Court explicitly rejected Plessy’s argument that segregation marginalized African Americans and perpetuated the belief that African Americans were inferior. Yet in Brown v. Board of Education of Topeka (1954), the Court outlawed segregated schools precisely because of the social stigma associated with segregation. What changed? The political climate had changed dramatically; between 1896 and 1954, African Americans had gained considerable electoral strength. Moreover, the composition of the Court had changed. Specifically, the Brown decision was vetted by a newly appointed Chief Justice Earl Warren.

The change in jurisprudence between Plessy and Brown illustrates both the importance of the ideology of individual members of the Court and the importance of a favorable political climate for the Court’s exercise of power. The Court’s decision in Brown could be implemented only with the support of the president, who mobilized the National Guard to force southern states to integrate their public schools.

The issue of race provides further illustration of the interplay between the Court and the elected branches. The Supreme Court has struggled to articulate a clear, concise position on the issue of affirmative action, leaving states to formulate their policies through a process of trial and error. In 1978, the Court first addressed the issue of affirmative action in higher education with the case of Regents of the University of California v. Bakke. In Bakke, the Court indicated that some affirmative action programs might be constitutionally acceptable, but the University of California program was not. Over the next twenty-five years, public universities across the country attempted to develop constitutionally acceptable yet effective affirmative action policies, but the Court failed to provide clear guidance. In 2003, the Court issued two decisions on the issue of affirmative action, and universities hoped that the issue would finally be resolved. In Gratz v. Bollinger, the Court struck down the University of Michigan’s affirmative action program for undergraduate admissions; in Grutter v. Bollinger, the Court upheld the affirmative action program for the University of Michigan’s law school. Taken together, the two decisions indicate that diversity in education is a compelling government interest, that public schools can consider racial diversity in admissions decisions, but that race cannot be given any precise, explicit weight in the decision process. The decisions provide guidance, but they are far from defining exactly when and how public universities may consider race in admissions.

While the issue of race illustrates the interplay and interdependence of the courts and elected government over the course of more than a century, the issue of abortion provides a more succinct yet equally compelling illustration. In 1973, following the relaxation of numerous state anti-abortion laws, the Supreme Court issued its landmark decision in Roe v. Wade. In Roe, the Court held that the right to privacy—which is not enumerated in the Constitution but which the Court had previously inferred from a number of constitutional provisions—protected the right of a woman to obtain an abortion. In a remarkably “legislative” opinion, the Court expounded that a woman’s right to privacy completely dominated the state’s interests during the first trimester of pregnancy but the two obtained more equal footing as the pregnancy progressed.

The Roe decision ignited a firestorm of controversy. It mobilized anti-abortion activists and helped solidify a full-fledged anti-abortion movement in American politics. It prompted conservative state governments to enact increasingly restrictive anti-abortion legislation in an effort to test the boundaries of Roe and lead to the Court overturning its decision. It made the issue of abortion and the right to privacy a sort of litmus test in judicial nominations and confirmations. In the wake of Roe, the effect of the Court on politics and that of politics on the Court are stark.

Bibliography:

Baum, Lawrence. 2004. The Supreme Court. 8th ed. Washington, DC: CQ Press.
Devins, Neal. 1992. Judicial Matters. California Law Review 80: 1027–1069.
Lazarus, Edward. 2005. Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court. Rev. ed. New York: Penguin.
Nelson, William Edward. 2000. Marbury v. Madison: The Origins and Legacy of Judicial Review. Lawrence: University of Kansas Press.
O’Brien, David. 2005. Storm Center: The Supreme Court in American Politics. 7th ed. New York: Norton.
Rosenberg, Gerald. 1993. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press.