Profile of the US Supreme Court Part 3: The Development of SCOTUS Power Over Time
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Welcome to part 3 of the profile of the US Supreme Court, prompted in part by the recent resurgence of SCOTUS in the news. While you do not have to read the first or second parts to completely understand where this is going, it will give you a better idea of where this series of posts is going overall. You can read Part 1: The Size of the SCOTUS Bench and Its Occupants and Part 2: Public Perception and Knowledge of SCOTUS at their respective links.
This profile will be rounded out by Part 4: How Does a Case Get Before the Supreme Court? Read below for part 3, which concerns how the institution has changed over time. As with the executive and judicial branches of the federal government, the judiciary has changed considerably over the years. It’s been at the center of some of the most monumental moments in American history, both affecting and being affected by enormous shifts in the country’s culture.
The Beginnings of the Supreme Court
It may be surprising in retrospect, but the SCOTUS in its earliest form did not hold even nearly the same level of prominence that it does now. Article III of the US Constitution lays the foundation for the federal judiciary (which includes more judges than just those on the US Supreme Court). Just about everything concerning the judicial branch’s formation was left in the hands on Congress. Through the Judiciary Act of 1789, 13 judicial districts were created and organized into Eastern, Middle, and Southern Circuits, and SCOTUS was composed of one chief justice and five associate justices. For almost all of the first century of the US Supreme Court’s existence, its justices also had to hold circuit court twice a year in each judicial district.¹
Federalist Paper #78, one of the many written by Alexander Hamilton, provides a critical insight into why the US Constitution set up the federal courts the way it did. In Hamilton’s eyes, the judiciary was inherently the weakest of the three branches of government due to “having no influence over either the sword or the purse” — referring to the executive branch’s power to enforce the law and the legislative branch’s responsibility of dictating government spending, respectively. The courts didn’t possess such direct powers.
Federal judges’ lifetime appointments — what Hamilton calls “during good behavior” — were meant to insulate them from political machinations. At least, that’s what Hamilton argued. That turned out to not exactly be the case, especially shown in the judicial confirmation battles between the president and Congress over the last several decades, regardless of if and when prospective and confirmed SCOTUS justices have tried to separate themselves from any sort of political fights. But were they less beholden to politics with life terms than if they had finite, fixed terms? That’s a debate that continues on even today.
The Ascent of SCOTUS: John Marshall and the Marbury v. Madison Case
But perhaps the most notable thing about the early SCOTUS is the power it didn’t originally have, the one it is most known for now — judicial review. Judicial review refers to SCOTUS’ ability to declare executive and legislative acts as unconstitutional. It’s a staple of the Supreme Court’s role in government. As crazy as it seems today, the Supreme Court did not actually have the ability to rule on the constitutionality of laws passed when it was first formed.
That all changed thanks to Supreme Court Chief Justice John Marshall’s ruling in the 1803 case Marbury v. Madison. The impact of the case was less about the case itself and more about the ability Marshall determined was under SCOTUS purview. (You can find more information about the case itself in these sources.) Marshall and the majority of SCOTUS’ ruling established that it was their institution’s responsibility to rule on the constitutionality of executive and legislative acts, otherwise known as judicial review. This outcome would immensely impact countless future cases that would go before the Supreme Court.
Supreme Court Precedents and How They Have Changed Over Time
Despite the judiciary’s inability to directly impact policy in ways that the executive and legislative branches can, its actions have made some of the most substantial impacts on American politics and society. This is perhaps most notable in the particular precedents they have set — and in some cases, have overturned — over time.
While there are too many precedents to cover in this one post, exhibit A is the case of civil rights. While far from the only cases relevant to civil rights, there is a particular through-line that can be seen in the landmark decisions from Dred Scott v. Sandford (1856) to Plessy v. Ferguson (1896) to Brown v. Board of Education (1954).
While the long road to equal rights among racial groups is understood in a very general sense, the particulars are not as well-known. Arguably the biggest early court challenge to the institution of slavery was in the Dred Scott v. Sandford case. In short, it was ruled that slaves were considered property and that neither slaves nor free Blacks were considered citizens. (You can find more information on the case in these sources.) The 13th, 14th, and 15th Amendments to the US Constitution in 1865 — the abolition of slavery, equal protection amendment, and racial minorities’ right to vote, respectively — would directly go against the Dred Scott ruling.
Yet that was far from the last time the Supreme Court would be involved in civil rights cases. Homer Plessy of Plessy v. Ferguson fame was a man of mixed-race — 7/8ths Caucasian and 1/8th Black, also known by the offensive term of “octoroon.” When he was ordered to sit in a train car reserved for Blacks, he refused and ultimately took his case to the Supreme Court that such a separation was unconstitutional. The SCOTUS, however, ruled against him, stating that laws that implied racial differences were not inherently unconstitutional, establishing the infamous “separate but equal” doctrine and upholding segregation. (You can read more about the case in these sources.)
The “separate but equal” doctrine would stand for over half-a-century until one of if not the most monumental SCOTUS decision of the 20th century. Brown v Board of Education was actually a class action lawsuit of sorts, a consolidation of five separate cases.² Thurgood Marshall (who would later go on to be the first Black Supreme Court justice in history) and his legal team successfully argued in front of SCOTUS that the “separate but equal” doctrine was inherently unconstitutional. The court’s ruling set in motion the end to legalized segregation.
But for all the court’s influence, they still did not have the power to enforce their rulings. The general role of the judicial branch is to interpret laws. The executive branch enforces the laws while the legislative branch writes the laws. While SCOTUS clearly intended to end segregation, their order to do so included the vague phrasing “with all deliberate speed”. Many schools and school districts deliberately took “deliberate” out of context by deliberately taking a long time to desegregate while pretending to put in the effort to integrate. Still, the court ruling’s impact was undeniable and meaningful — it just took eventual action from the executive branch and laws from the legislative branch to make it a reality.
What’s the Next Move That Significantly Asserts the Power and Role of the Supreme Court?
Right now, the hot topic with SCOTUS is whether they may overturn the precedent set by Roe v. Wade, which legalized abortion. While states cannot outright outlaw abortion, some of them have passed laws that have made the timetable that a woman can have an abortion shorter and shorter. With six of the nine Supreme Court justices described as conservative, the consensus prediction seems to be that the Court will indeed overturn Roe v. Wade in whatever abortion case brought forth.
But what happens after the court ruling? Whatever the decision is, the courts still can’t enforce rulings themselves. Will some states (or even the executive and legislative branches of the federal government) be resistant to what the court rules? Obviously, it also depends on what the ruling entails and what arguments the litigants make. Does the ruling simply say that current laws decreasing the timetables for abortion are constitutional? Does the court set a particular timetable itself? Or is it something else, like something to do with abortion clinic availability? Maybe it’s a combination of things. Maybe even the wording of the ruling gives states room to be slow on acquiescing to the ruling, such as the case of “with all deliberate speed” like in the Brown v. Board of Education decision.
In any case, abortion is one of the most divisive political topics today. Even with the highest court of the country ruling on it, don’t be surprised if there is some resistance to whatever SCOTUS decides. It’d be far from the first time that people would act in opposition to a legal decision by the Supreme Court.
- Supreme Court of the United States. “The Court as an Institution.” https://www.supremecourt.gov/about/institution.aspx (accessed October 23rd, 2021).
- United States Courts. “History — Brown v. Board of Education Re-enactment.” https://www.uscourts.gov/educational-resources/educational-activities/history-brown-v-board-education-re-enactment (accessed December 29, 2021).
