Government
Judiciary

The Supreme Court is the highest court in the United States. Litigants dissatisfied with a lower court decision may appeal to the Supreme Court, although very few cases ever reach the court. A ruling of the Supreme Court cannot be appealed. As Justice Robert Jackson once explained: “The [Supreme] Court is not final because it is infallible; the court is infallible because it is final.” There are currently nine Supreme Court justices, who, like all federal judges, are appointed by the president and confirmed by the Senate.

Responsibilities of the Supreme Court

An important feature of the American legal system is the practice of judicial review. The most important exercise of judicial review is by the Supreme Court. The court can determine whether a statute or executive action conforms to the rules and principles laid down in the Constitution. It can strike down laws that it considers unconstitutional. Judicial review does not belong exclusively to the Supreme Court; in appropriate cases, every court may strike down laws that violate the Constitution. Although judicial review adds flexibility to the Constitution—allowing it to be interpreted for changing times—this power is not explicitly stated in the Constitution.

In the years following the adoption of the Constitution, the Court and Congress debated whether the judiciary actually had the power of judicial review. The issue was resolved in 1803, when in the case of Marbury v. Madison, the Court firmly established the power of the judiciary to review acts of Congress and decide if they were constitutional. Chief Justice John Marshall reasoned that the Constitution was the highest law of the nation, and that with respect to congressional legislation, the Constitution was “superior…law, unchangeable by ordinary means.” Consequently, Madison argued, if the judiciary interpreted a law or statute as contradicting the Constitution, the courts could nullify it.

Marshall established the common-sense view that within the three branches of government, courts are especially qualified to rule whether legislation is constitutional. Marshall held that judicial power resided in the court’s authority to interpret the Constitution. This principle has been accepted ever since. Although the judicial override has more often been a threat than a reality—by 1998 the Supreme Court had struck down federal laws and executive orders only 127 times—it still is a powerful tool. However, as with all federal courts, some Americans have questioned whether the Supreme Court should have that power without its members being elected by the people.

The Supreme Court decides appeals and constitutional issues. It also has jurisdiction over various kinds of other cases. These cases include those involving public officials such as ambassadors or consuls, or those where a state is a party in the case.

Influences on the Supreme Court

Despite its authority on paper, the Supreme Court is influenced by certain factors. When a vacancy occurs because of death, retirement, or impeachment of a Supreme Court justice, the president appoints a new justice who then must be confirmed by a majority of the Senate. As a result, the president and the Senate can affect the composition and sentiment of the court. For example, the court changed dramatically during the American Civil War (1861-1865), when President Abraham Lincoln appointed five justices to a body that had been controlled before the war by Southerners. Individual justices are also influenced by personal background, political views, relationships with other judges, and even by the clerks who assist them.

The Solicitor General, who represents the federal government at the Supreme Court, also shapes the court’s agenda. As the chief government lawyer in cases before the courts of appeals, the Solicitor General decides which cases the government should ask the court to review and what the government’s position will be in them. The Solicitor General’s power to petition the court to review cases is important because the Supreme Court can rule only on cases that are brought before it. The court cannot simply choose to examine a law or case of its own accord.

Finally the Supreme Court is influenced by what it believes the majority of American people support. This influence of public opinion was evident in the 1930s, when a conservative court at first opposed the agricultural policies of President Franklin Roosevelt’s New Deal. These polices, which curtailed farm production in an effort to stabilize the agricultural economy, expanded the power of the federal government by giving it a much larger role in regulating agriculture and commerce. After Roosevelt won substantial majorities in the presidential elections of 1936 and 1940, however, the same justices accepted legislation similar to what they had earlier called unconstitutional. Another example is the 1972 decision Roe v. Wade, in which the Supreme Court ruled that a woman has a constitutional right to an abortion during the first six months of pregnancy. This ruling is often seen as a judicial response to a significant change in the people’s attitudes toward women and their right to privacy.

Current Trends and Issues

Presently the judiciary has several challenges. The first involves a debate over the proper limits of the Supreme Court’s activism. This debate pits judicial fundamentalists, or strict constructionists, against judicial activists, also known as loose constructionists.

Strict constructionists believe the Supreme Court should interpret the Constitution using only its specific wording and the original intentions of its authors. In this way, they argue, the court would serve as a gatekeeper, maintaining the balance between the separate powers of government and adhering to established precedents. Strict constructionists believe that changes should come through executive and legislative actions and through the states.

Loose constructionists favor a liberal interpretation of the Constitution. They hold that the authors of the Constitution did not intend to preserve an unchanging society, but instead meant the Constitution to adapt as the needs of the nation changed. Thus, they argue, the court should be free to clarify the vague language of statutes and to interpret rules for practical application. In this view, the Supreme Court considers the constitutionality of important public issues in a society that is much different than it was when the Constitution was written.

Loose constructionists also believe the judiciary stands as the primary protector of minority rights and unpopular viewpoints. Judicial activists look to the courts to protect rights and opinions that are not widely accepted and that might be trampled by a legislative majority. By adopting a flexible view of the Constitution, the Supreme Court has often upheld the rights of minority groups, such as the Amish or Jehovah’s Witnesses. For example, the Amish have used the First Amendment to challenge the application of states’ school laws to their children. Members of Jehovah’s Witnesses have challenged the right of the state to draft them for military service and have refused to allow their children to salute the national flag or say the Pledge of Allegiance to the Flag. They have turned, often successfully, to the Supreme Court to sustain their constitutional right to dissent.