An Introduction to the American Supreme Court
About the Author
Samantha Love read Law at Merton College, Oxford, and is currently following the BCL course.
“It is emphatically the province and duty of the Judicial Department to say what the law is.” Chief Justice John Marshall in Marbury v Madison 5 U.S. 137 (1803)
The United States of America has the longest-serving codified Constitution in the world, which came into effect in 1789. Its continuing relevance can be put down to the fact that it creates a bare-bones structure for the good governance of the United States and leaves the rest to future developments, including judicial re-interpretations. This leaves the Supreme Court in a position of significant power to control developments in American law by assessing their legality next to the Constitution, and striking down unconstitutional statutes. The importance of this is not lost on American Presidents and politicians when new Justices are proposed for the Court, and the process can seem very political at times. However, the Court’s role as ‘guardian of the Constitution’ should be seen as motivated by more than individual political views. The Justices will more often than not come to a decision unanimously, and questions of how the Constitution should be interpreted are as much about legal and philosophical reasoning as what the ‘right answer’ ought to be.
The Supreme Court’s place in the constitution
The Constitution only establishes the Supreme Court- all other federal courts are created by Congress as necessary. The Supreme Court is therefore separate from both Congress (the legislative or law-making body) and the Executive (the President and his staff, essentially), not being formed by either but instead by the Constitution. There are a number of ‘checks and balances’ between these arms of the State to ensure that none has too much power over the others. For instance, Congress must approve the annual budget, and if it does not do so then the federal government will run at a minimum service until a budget is approved – we saw this in 2013. Supreme Court Justices are nominated by the President and approved by the Senate, and stay in their position until death, retirement or removal by impeachment (something which has only happened once and requires good grounds and votes in Congress). This theoretically allows Justices to decide cases without any fear of a backlash from politicians, and for this reason a Justice’s salary cannot be decreased whilst they sit on the Court either.
These institutional mechanisms go some way to ensuring the Court is sufficiently independent of Congress and the President. However, the true independence of the Court lies in its ability to exercise the judicial review of legislation for compatibility with the Constitution, and to strike down incompatible legislation. Although this power is not explicitly set out in the Constitution, the Court declared that it was able to do this in Marbury v Madison. The role had been envisaged even before the creation of the Constitution; Alexander Hamilton suggested it in Federalist Paper No. 78. In cases of straightforward appeal, based on (say) the interpretation of a piece of legislation, if Congress does not like the way the Court reads a clause then the decision can be effectively overridden with a new piece of legislation. A decision on the interpretation of the Constitution, however, must be met with constitutional amendment. The usual method (there are two) is by a 2/3 majority vote in each House of Congress and then ratification by 3/4 of the state legislatures. This is obviously a drawn-out process which requires a high threshold of majority support, so it gives a significant amount of power to the Supreme Court to control the Constitution and protect its fundamental aims. It is a way to prevent the majority from voting to restrict the rights of minorities, or preventing the State from infringing citizens’ freedoms. This second concern is the reason for the famous Second Amendment, the ‘right to keep and bear arms’. Citizens were meant to be able to take up arms against an oppressive government, although it can be questioned whether this would be the most effective way to oppose a government in the 21st century. The underlying sentiment is important though; the Constitution limits the power of the State, and the Court’s role is to enforce these limits. The Court also upholds the principles on which the United States are built, and in so doing must from time to time change its interpretation of the Constitution as society considers the principles to require a new approach.
Constitutional interpretation – a few examples
As said above, the United States Constitution is old. It even pre-dates the Civil War, and the country has seen many changes since then. Quite how one document could continue to provide the framework of government for so long is fascinating, and it depends on quiet evolution – with the occasional significant re-interpretation. Of course, many of the day-to-day details are not dealt with in the Constitution so there is flexibility for change without any effect on the Constitution. However, it’s also worth seeing how the Supreme Court works to ensure that the Constitution stays up-to-date with careful reinterpretations. A couple of examples will show this.
Plessy v Ferguson 163 U.S. 537 is an 1896 case which upheld segregation of black and white people in rail carriages, and by extension all public services, providing those services were of equal quality. Louisiana had passed a law requiring black and white people to sit in separate carriages, and Mr Plessy’s was a test case to challenge the legality of this legislation under the Thirteenth Amendment (which bans slavery and servitude) and the Fourteenth Amendment (which grants ‘equal protection’ of the law to all). The case was decided against Mr Plessy 7-1, and the decision emphasised that ‘separate but equal’ provision of public services did not violate either Amendment of the Constitution.
Justice Brown stated that “We consider the underlying fallacy of the plaintiff’s argument to consist in the assumption that the enforced separation of the two races stamps the colored race with a badge of inferiority. If this be so, it is not by reason of anything found in the act, but solely because the colored race chooses to put that construction upon it.”
Of course, nowadays we would argue that in light of America’s history of slavery there is an implication that separation is because black people are inferior. Segregation must be understood in light of the country’s history. And further, whilst the railway carriages in Louisiana were found to be of the same quality the same could probably not be said of many other segregated facilities, such as schools. This was part of the basis of the decision in Brown.
Brown v Board of Education of Topeka 347 U.S. 483 is a 1954 case about the same Constitutional Amendment, but gives it a different reading in light of the context and impact of segregation. This was another test case, this time an action about segregated schools. Mr Brown’s daughter Linda would have to walk six blocks to catch a bus which would go to the ‘black’ school one mile away, whereas her closest school was only six blocks away but was only for white students. At this time states had differing policies on segregation ranging from it being totally forbidden to mandatory, so the country was already beginning to question whether segregated schooling was in fact right. The Court unanimously said that segregation was not permitted under the Fourteenth Amendment, because segregated schooling was inherently unequal, even if the facilities were the same for both groups (which they often weren’t):
“Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it has the sanction of the law, for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system…
“We conclude that, in the field of public education, the doctrine of “separate but equal” has no place. Separate educational facilities are inherently unequal. Therefore, we hold that the plaintiffs and others similarly situated for whom the actions have been brought are, by reason of the segregation complained of, deprived of the equal protection of the laws guaranteed by the Fourteenth Amendment.)” [emphasis added]
This judgment was completely unanimous, despite it being controversial, and its political ramifications were huge. For now it’s important to notice how the same constitutional provision has been interpreted in two very different ways in the space of only 58 years. The judgment in Brown took into account changing ideas of what ‘equal protection’ means, looking at the issue in its context rather than just whether treatment is formally equal. From such a vague phrase of ‘equal protection of the laws’ the Court developed its judgments, but the starting point of each meant that the two decisions came out very differently.
Another case which emphasises this power of the Court to develop interpretations beyond their ‘face value’ meaning is Roe v Wade 410 U.S. 113. This 1973 case upheld a woman’s right to have an abortion due to the right to privacy found in the Fourteenth Amendment, though this right was balanced against a state’s legitimate interests in protecting women’s health and protecting prenatal life so that abortions were not permitted past the stage of ‘viability’ (when the baby would survive if born). The Court here made what would seem to be quite a vague clause into a decision which would impact on state legislation and create one of the biggest political issues in America, even forty years later. The right to privacy was interpreted as a woman’s right to control her body whilst abortion was as safe as childbirth, and a doctor’s right to practise medicine without state interference. This fleshing-out of rights can either be interpreted as putting a right into a specific context, and as a necessary part of the judicial role, or of a politically-motivated decision made to prevent states from enforcing their own moral views. It has been a controversial judgment and has been subject to change since, yet more proof that the Constitution does not have every answer already written into it. And yet that is a good thing; it is the value of the Constitution and the reason for its continued existence.
Some legal philosophy on constitutional interpretation
If you have read anything about constitutional interpretation in the USA you will have heard of the ‘originalist’ school; those who believe that the Supreme Court’s role is to find the original intention or meaning of the Constitution and no more. The decisions in Brown and Roe v Wade would not have fitted with the political leanings of the Founding Fathers (or those who ratified the Amendments) and so these decisions are considered to be simply examples of judicial activism – making law rather than upholding the law which is already there.
However, there are a few things to note here. Firstly, it would have been impossible for the Founding Fathers to have foreseen the cases which would come before the Supreme Court so long after the adoption of the Constitution. We cannot predict what situations a law will be applied to so a list of what to do in certain potential situations will not cover all of them, and nor will the words of a piece of legislation on their own give us the answer to all situations. This argument has been most famously made by HLA Hart in The Concept of Law. There is always a role for the interpretation of legislation, which inevitably must be done in the context of the legislation’s purpose. If a law says ‘no vehicles in the park’, somebody has to decide whether the reason for the rule is to prevent people being run over, the quiet of the park being disturbed or to ensure there is no pollution in the park before we can know whether bicycles count as vehicles. And if there were a list of ‘vehicles’ then we would only have to change the legislation when hover boards were invented. However, whilst we may not be able to predict future situations the general principles can be laid down and the law interpreted in light of those principles so that it is applied sensibly to new situations. This is how the US Constitution works. For instance, the prohibition of ‘cruel and unusual punishment’ should surely be interpreted in light of what is nowadays possible. Carrying out the death penalty by slow hanging seems barbaric now that we have cleaner and quicker methods. Even then, some say that death is a cruel and unusual punishment so the debate goes on. The Founding Fathers cannot have expected nothing in society’s attitudes to change, and it should be borne in mind that they themselves were relatively forward-thinking for their time. So if we now understand ‘equal protection’ as being about more than just services of equal quality, then so be it. We are still in line with the principle of the Constitution, and the Founding Fathers would perhaps agree with us were they living in our era. There is therefore a way to see the ‘originalist’ approach as requiring changes in our interpretation of the Constitution, although you may not necessarily find the more conservative members of the Court agreeing with that idea!
On politicisation of the Court
Given that a Supreme Court Justice serves for life, or until retirement, appointing a new Justice is an important decision. With such a long time in the role and little to no chance of impeachment, and the Court deciding on constitutional issues of such significance, it is little wonder that the President and the Senate take the process so seriously. Rejections of candidates may be relatively rare, but this perhaps shows that the President will consider the likely reaction of the Senate before putting someone forward, and Presidents have been known to withdraw a nomination before a vote has been taken.
However, it’s worth noting that although the Supreme Court does have an important role in influencing the limits of state and federal law, the division between ‘liberal’ and ‘conservative’ judges may not be as clear as one would expect. The Supreme Court blog notes that 49% of decisions in the term beginning October 2012 were decided unanimously, and that of the 23 5-4 decisions only 16 were decided along the expected lines of ideology. It ought to be remembered both that not every decision of the Supreme Court are about questions which are inherently political or ideological, and that these judges all have extensive legal training in one form or another. They understand their role and take it seriously, and any arguments about the correct way to interpret the Constitution are about what is professional and proper as a judge rather than just what the ‘correct’ political outcome is. The Justices are the guardians of the Constitution; they just happen to disagree on what the Constitution demands. This does not of course prevent the outcome of the decisions from having an impact on politics, but the aim of a Constitution is to take some issues ‘off the political agenda’. The question is of course whether the Court interprets these issues correctly. Is it really not for the people to decide whether to have an outright ban on abortion? Or whether they want to introduce compulsory nation-wide health insurance (it is, apparently, but the fact it got to the Supreme Court is significant)? Perhaps the focus should not be on the outcome of the decisions, but whether the Constitution ought to be covering such political issues at all.
The model of a Court which protects and upholds the Constitution is not unique to the United States. However, the age of that Constitution and the passion which some of its decisions have raised are distinguishing features, as is the almost political nature of the appointment process. However, at the end of the day these Justices are professionally trained lawyers or academics whose position is protected from influence and whose decisions are motivated by what they believe the Constitution of their country demands. There is certainly an ongoing tension between the actual words of the Constitution as they would have been understood at the time, and what they could/should mean in light of current circumstances, but the Court deals with these cases as they are sent to the Court. And as Brown shows, it is not averse to recognising a changing social and political context and re-interpreting the Constitution to keep up with the times.
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