The Supreme Court in America adjudicates on acts passed through the political system by Congress and President. The Supreme Court’s task is to declare whether an act is constitutional or unconstitutional. The Supreme Court cannot initiate a bill/act – it can only adjudicate. Presidents appoint Supreme Court judges and the Court was to play a part in the outcome of the 2000 Election.

The Constitution and the Supreme Court: the Constitution is very clear about the position of the Supreme Court as stated in Article III.

“The judicial power of the United States shall be vested in one Supreme Court and in such inferior courts that the Congress may from time to time ordain and establish.”


“The judicial power shall extend to all cases, in law and equity, arising under the Constitution, the laws of the United States and Treaties.”

Article III states very little else (Section 3 refers to treason) and it is in this short section of the Constitution that the power of the Supreme Court emanates. Ironically, it is unclear whether the Founding Fathers intended the Supreme Court to have such power and the written record of debate on this issue contains very few references to the power that this body should have or might develop.

The structure of the Federal courts:

The Constitution clearly places the Supreme Court at the head of the federal judicial system in America. Congress does have the right to establish inferior courts and it has taken the opportunity to do this. Originally, Congress established three circuit courts of appeal and thirteen district courts. Since then, the federal court system has expanded to eleven circuit courts of appeal plus one for Washington DC, and ninety four district courts. Under Article 1 of the Constitution, Congress has also established four legislative courts. They are those of the District of Columbia, territorial courts, tax courts and the Court of Military Appeals.

District courts are courts of original jurisdiction. That is, they are the basic trial courts of the federal system. Most decisions taken in these courts are usually final but they can be reviewed by the Courts of Appeal. The Courts of Appeal are organised into circuits and they may only hear appeals from within their own circuits. The Supreme Court is the final court of appeal. It can hear cases from the inferior federal courts and from state courts when a federal issue is involved. Federal issues include crimes against America, disputes between citizens of different states, disputes between US citizens and a foreign nation and actions arising under the Constitution.

There are two ways in which a case can be referred to the Supreme Court. The first is a direct appeal from the lower federal courts if a constitutional issue is deemed to be involved. The second way is by petitioning for a writ of certiorari. This means that the records of a case in a lower federal court are sent to the Supreme Court for review. Such a writ can only be granted with the agreement of four justices of the Supreme Court.

The Supreme Court acts as a court of original jurisdiction in very rare cases only. It would be extremely unlikely that a case would go straight to the Supreme Court and bypass the lower federal courts. Article III, Section 2 is very clear when it states that this only happens in:

“cases affecting Ambassadors, public ministers and consuls and those in which a state shall be a party.”

The Founding Fathers were determined to create a judicial system that was independent of political pressure. This was in keeping with their desire to keep a ‘checks and balance’ system by splitting government into three. It also fitted in with their desire to see America governed by the so-called Rule of Law.

The Rule of Law states categorically that:

all people are subject to the law of the land and shall be treated equally regardless of colour, status or creed

the government is subject to the law

no-one is above the law

everybody should know how they will be treated by the law and this treatment shall be the same for everybody

America should have a “government of laws and not of men”.

In view of the Rule of Law, every effort is made to distinguish between judicial decisions and political decisions.

Judicial decisions involve the application of law to specific circumstances and they have to be made in accordance with the law as made by the Legislature and they have to be made without reference to political belief.

Political decisions are made by those who have been elected to do so. As judges have not been elected by the people , they do not make political decisions.

To maintain the distinction between judicial and political decisions, the Founding Fathers anticipated that the judiciary would work free of political interference. Alexander Hamilton wrote:

“the complete independence of the courts of justice is peculiarly essential in a  limited constitution.”

To maintain full judicial independence, the Constitution clearly states, in Article III, that judicial power lies with the Supreme Court and the inferior federal courts established by Congress. The Article also clearly states that judges cannot be dismissed or receive unfavourable treatment simply because they make a judgement that does not find political support and/or favour from the party in power. 

To diminish the chances of bribery, the Article also states that judges should receive payment for the work that they do, the sum of which will not decrease during their time in office. Hamilton stated that one of the most important features of a firm and independent judiciary was permanency in office for the judges appointed to it – “this quality may therefore be justly regarded as an indispensable ingredient in its constitution.”

The Supreme Court and the inferior Federal courts are all protected from political interference. Judges are nominated by the president and ratified by the Senate. Once appointed, they hold their position for life and can only be removed by the impeachment process. They, naturally, have to abide by the law.

The legislative courts established by Congress do not have the same degree of independence. Congress can remove judges, reduce their pay and vary the length of their terms in office.

In 2006, there are nine Supreme Court judges. President G W Bush has been in the position whereby he can nominate 2 justices to the Supreme Court as a result of the death of Chief Justice Renquist and the retirement of Sandra Day O’Connor.

John Paul Stevens was nominated in 1975 by President Ford and is considered a moderate.
Antonio Scalia was nominated in 1986 by Reagan and is considered a “solid conservative”.
Anthony Kennedy was nominated in 1987 by Reagan and he is considered a legal conservative.
David Souter was nominated in 1990 by President Bush and is considered to be a legal conservative.
Clarence Thomas is considered a conservative and was nominated  in 1991 by Bush.
Ruth Bader Ginsburg was Clinton’s first nomination in 1993. The second female justice who is considered to be a moderate liberal.
Stephen Breyer was nominated by Clinton in 1994. He is considered to middling to conservative in his legal approach.
John Roberts was nominated by G W Bush in 2005 and confirmed by the Senate in September 2005.
Samuel Alito was nominated by G W Bush and faced the Senate in January 2006. His nomination was accepted.

It is common practice for the Senate to ratify the president’s choices as Justices. However, in 1987, Reagan’s choice of Robert Bork was refused by the Senate which, in turn, lead to the appointment of Kennedy.

The main responsibility for ratification lies with the Senate Judiciary Committee. It is the usual procedure to allow the president a free choice of Justices. This is especially true if the president has been elected with a large majority and can claim to have an electoral mandate. Of the 132 names put forward as potential justices since the Supreme Court was established, only 27 people have been rejected. 

There is evidence that the desire of the Founding Fathers to keep the Supreme Court apolitical, has not been upheld. Reagan used his presidency to turn the Supreme Court more conservative and right wing. Presidents do use the appointment system as a means of getting the Supreme Court more to their political sway – if the opportunity arises to replace a Justice. 

Breyer, appointed by Clinton, was considered by many to be a ‘safe’ Clinton man. Any recent rejection of a presidential nominee, have centred entirely on the belief by the Senate, that the president was trying too obviously to politically influence the Supreme Court. Bork was rejected by the Senate for being far too right wing for their liking. Reagan’s next replacement – Douglas Ginsburg – had to be withdrawn after it was made known that he had taken drugs as a young man. The final choice – accepted by the Senate – Anthony Kennedy, has proved every bit as conservative as Bork would have been if he had been accepted by the Senate!

When deciding on a candidate, a president has to examine the social and political make-up of the Supreme Court. Reagan appointed Sandra Day O’Connor – the first female Justice. Whether this was to appeal to the potential female voters for the Republican president is unclear. To maintain an ethnic balance, Bush appointed Clarence Thomas – an Afro-American – to replace the Afro-American Thurgood Marshall. During the Senate hearing leading to the vote of whether to accept him or not, an employee of Thomas, Anita Hill, accused him of sexual harassment. This clouded the issue but he was eventually accepted by the Senate by 52 votes to 48.

The Constitution does not state how many Justices should sit on a court. The figure has varied from five to ten but the accepted figure for the Supreme Court is now nine. Though a Justice no longer sits on the circuit courts of appeals, each one does have some responsibilities with at least one of the appeals court. A crisis did occur in 1937 when Roosevelt attempted to pack the Supreme Court with five more Justices who were amenable to his New Deal policies (eight New Deal statutes had been declared unconstitutional by the nine-man Supreme Court). Such blatant politicisation of the Supreme Court was rejected by Congress despite Roosevelt’s standing in the public eye. Their logical assumption was that with a packed Supreme Court, the president could end up doing effectively what he liked. Such an idea was anathema to Congress and would have gone against all that the Founding Fathers had sought to achieve.

The power of the Supreme Court 

The above example of Roosevelt gives a clear idea of the power the Supreme Court. Despite an overwhelming electoral victory in 1932 which was based on the promise of a New Deal, the Supreme Court still declared as illegal eight of the New Deal’s statutes. The ability of the Supreme Court to scrutinise all aspects of government is known as judicial review

This power is based on the Supreme Court’s ability to act as the interpreter and arbiter of the Constitution.Neither the president nor Congress has the right to do this. The Supreme Court is the only body that has the right to interpret what the Constitution means and it is this right that gives it the power to scrutinise all aspects of government. Ironically this power is not laid down in the Constitution. The Constitution does state that the Supreme Court is the most supreme judicial body in America but it is vague as to how this role should be put into practice. This would fit in with the flexibility that the Founding Fathers wanted put into the Constitution as they knew that the country would grow from the thirteen states that they had to deal with and that they could not know precisely how this would determine how the Constitution would work in a growing society. The lawlessness of America at the time of the writing of the Constitution and the dangers of simply living there were apparent to the Founding Fathers – hence their declaration that each person shall have the right to bear arms. The withdrawal of such a right would have serious Constitutional implications.

The power of the Supreme Court does fit in with the concept of checks and balances to all aspects of government.

“The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It must therefore belong to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.” Hamilton

The power and status of the Supreme Court was most developed by Chief Justice John Marshall. He believed in a strong central government and was a federalist. In his thirty four years as Chief Justice (1801-1835), he developed its power “more than any justice before or since.” (Williams) His most famous case was Marbury v Madison in 1803. It was in this particular case that Marshall established the principle of judicial review should be held by the Supreme Court.

States have always jealously guarded their rights. The Tenth Amendment (1791) gave them the right to govern all aspects within their state not specifically given to the federal government under the Constitution. Despite this power, Marshall, as a strong federalist, attempted to use every opportunity he had to reaffirm the power of the Supreme Court. 

They most important case he presided over was Martin v Hunter’s Lessee in 1816 whereby the state of Virginia, via its highest state court, claimed that state governments and the federal government were equal and therefore the Supreme Court had no jurisdiction over the highest court of a state. Marshall stated that every state had lost part of its sovereignty when it accepted the Constitution and therefore all states were subject to the rulings of the Supreme Court.

An equally famous case involving Marshall was McCuloch v Maryland in 1819. Maryland had imposed a state tax on the National Bank of America. If the bank had paid this tax, it would have been put out of business; hence it refused to pay. Marshall argued that the federal status of the bank meant that it must be allowed to carry out the duties required of it and the Supreme Court declared the tax unconstitutional. This ruling established the Supreme Court’s right to review state governments. It has been in the realm of state law that the Supreme Court has been most active in its use of judicial review. Since the era of Marshall, the principle of judicial review within America has largely gone unquestioned.

The rights of the Federal government have also been checked by the Supreme Court as both Truman and Nixon found out. In 1952, Truman was found to have acted unconstitutionally in ordering the army to take over US steel plants – despite his claim that as supreme head of the armed forces he could do this. Nixon was ordered by the Supreme Court to hand over the so-called Watergate tapes arguing that he did not have absolute executive power to withhold them……..the president does not have “unqualified presidential immunity from the judicial process under all circumstances.”

The power of judicial review has allowed the Supreme Court to protect civil liberties within America. Its involvement in civil rights issues have ranged from racial issues, to the rights of those accused and the reapportionment of electoral districts.

in 1954, the Supreme Court stated that racially segregated schools were a violation of the equal protection clause of the 14th Amendment. in 1966, the Supreme Court stated that a person must be informed of his/her right to remain silent when arrested and that they have access to a lawyer if required. in 1966, the Supreme Court stated that one person should have one vote when dealing with the apportionment of electoral districts.

The Supreme Court has played a very important part in preserving the rights (and building them) of minority groups. Politicians invariably sway their work towards the majority as it is the majority that will vote them back into power. This has been called the “tyranny of the majority” which has meant that the minorities have been left behind in the rush for votes. Chief Justice Marshall argued that there was no other institution in existence that could defend the rights of the minorities other than the Supreme Court. The 1954 decision of the Supreme Court is indicative of its power. Eisenhower had no great interest in reform in general and Congress was dominated by right wing southern Democrats who did not champion the civil rights movement. Therefore, only the Supreme Court could do this and the south’s educational policy based on segregation was overturned at a stroke. Enforcing it was another issue.

The Supreme Court’s approach to its work is itself divided. There are those called strict constructionists who believe that judges should be guided by the principle of original intent i.e. what the judges believe that Founding Fathers wanted for America. Strict constructionists believe that government policy making should be left to the Executive and Legislative branches of government. They also believe that self-restraint on the part of judges is important – known as judicial restraint.

Loose constructionists favour the use of the Supreme Court as a tool for promoting social goals which they believe will be desirable for America. These people believe in what is called judicial activism which others argue usurps the power of the Legislative. Reagan said of the way he appointed judges:

“The one thing that I do seek are judges who will interpret the law and not write the law.”

Chief Justice Warren was accused of making political decisions by strict constructionists. His supporters argued that what he was doing was benefiting the whole of America and if politicians could not do it, those who had no political motivation should do it if the country benefited.

The most recent and controversial involvement of the Supreme Court concerned the right to abortion. In 1973, the Supreme Court voted 7-2 to enforce the right of all women to have an abortion even though some states had banned it. They argued that this was allowed under the 14th Amendment. Though this issue was clearly the right of a woman (‘Jane Doe’) to have an abortion in Texas (where abortions were banned), others saw it as an attempt by the Supreme Court to further extend its powers over a state’s right to govern itself within the realms of the Constitution.

In 1989, with a more conservative Supreme Court, the above finding was nearly overturned. However, it was not, but the states took this move to the right by the Supreme Court, as an opportunity to regulate abortions far more closely. The states also gambled on the fact that the Court would not intervene on issues involving the availability of abortions in states. In 1992, the 1973 decision was once again upheld but the Court ruled that a state would be acting unconstitutionally if it placed “undue burden” on a woman’s right to an abortion.

Limits to the Supreme Court’s power 

The power of the Supreme Court is great but ultimately it is only a court of law.

The Supreme Court does not have the power to initiate its own cases. Cases can only come to it from a lower court (except in the limited area of so-called original jurisdiction). Therefore, a justice cannot select a law or policy with which he/she disagrees and bring it to court for a ruling.

Once a decision has been made, the Supreme Court does not have the ability to enforce its rulings. This can only be done by the Executive and Legislative branches of government. When segregation in southern schools was declared unconstitutional in 1954, nothing happened in the south. It took until 1957 for the decision to actually be enforced. Though the Supreme Court had initiated a new approach in southern schools, no-one in the south wanted to enforce it and only the Federal government could do this by the use of troops.

The Supreme Court needs to maintain its position within America as the most high judicial body within that country. Therefore it does need to be seen working as a partner with the Legislative and Executive branches as conflict between the three would invariably diminish their standing in the eyes of the public. It is rare that the Court will totally overturn an act passed by the Legislative. The Court might seek to change parts of it piecemeal and over a period of time as this would appear to be less provocative towards an elected body. The ability of the Supreme Court to interpret the Constitution is limited as most parts of it are written in a very clear and concise way which does not leave them open to interpretation.

The greatest limitation to the Supreme Court are the politicians themselves. As the Court cannot enforce its decisions, it relies on the Federal authorities to do this. These politicians are supportive of the Constitution and even Roosevelt never thought about operating without a Supreme Court regardless of his clashes with it. Politicians must be willing to listen and abide by its decisions. What could the Supreme Court do if these politicians refused to abide by its decisions ?

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