|
The
U.S.
Supreme Court in History and Today
Nancy Salvato
The
million-dollar question is, if the legislative branch won't hold
judges accountable for inappropriate use of their power, who will?
Suggestions, anyone?
The U.S.
Supreme Court, with its nine black-draped justices, is at the
pinnacle of America's third branch of government. It wields immense
power, but has sometimes stumbled
badly in exercising its influence.
 According to
Article
III,
Section 2, of the U.S. Constitution,
"Judicial Power shall extend to all Cases, in Law and Equity,
arising under this Constitution ..." The Supreme Court can hear some
cases directly (original
jurisdiction) and some only when they're appealed (appellate
jurisdiction). The meaning of jurisdiction is to interpret the law;
therefore, it is up to the Supreme Court to interpret federal law.
Some have
interpreted jurisdiction to mean that the Supreme Court has the
power of judicial review, which allows it to declare acts of the
president or Congress unconstitutional. This notion has been around
since the time the U.S. Constitution was written. According to
Alexander Hamilton, in Federalist 78,
"By a limited
Constitution, I understand one which contains certain specified
exceptions to the legislative authority; such, for instance, as that
it shall pass no bills of attainder, no ex post facto laws, and the
like. Limitations of this kind can be preserved in practice no other
than through the medium of the courts of justice, whose duty it must
be to declare all acts contrary to the manifest tenor of the
Constitution void. Without this, all the reservations of particular
rights or privileges would amount to nothing…"
In 1803, the
court assumed the power of judicial review in
Marbury v.
Madison, when Chief Justice John Marshall and his court
declared that Congress could not amend the original jurisdiction of
the Supreme Court without amending the Constitution.
Another way
the court has expanded its influence on public policy is through
broadly interpreting the "commerce clause" of the Constitution. This
began with
Gibbons
v.
Ogden
(1824), when Marshall said regulating commerce included regulating
the transportation of goods, not just the buying and selling of
goods.
The court
continued to redefine the power to regulate commerce to include a
potpourri of commercial activities over which the federal government
expanded its reach. In 1905, as a result of
Swift and Co. v. United States, the "stream of commerce"
doctrine extended regulatory control over meatpacking to the federal
government by allowing Congress to regulate at any point along the
"stream".
In
Heart of
Atlanta Motel v. United States (1964), it was ruled
within the law to regulate a privately owned accommodation, because
it used national advertising to solicit out of state customers and
provide accommodations to them. This ruling helped to enforce the
Civil Rights Act of 1964, which prohibited discrimination in public
accommodations involved in interstate commerce.
Sometimes the
courts put up roadblocks to the implementation of progressive public
policy by narrowly interpreting the Constitution. The Fourteenth
Amendment, passed in 1868, restricted state governments from
depriving individuals of their civil rights and liberties. In the
Slaughterhouse Cases (1873), Justice Miller narrowly
interpreted the Fourteenth Amendment's "privileges and immunities
clause" by saying that property and labor weren't included in the
fundamental rights. He said that these rights were subject to state
regulation for the good of the community. This left it up to the
Southern states to protect the basic rights of newly freed black
people.
The Civil War
amendments were passed to abolish slavery and secure equal rights.
However, the courts did not enforce these rights based on what we
would consider today as basic human rights principles. They were to
prove themselves not infallible for over a half-century; first
striking down the Civil Rights Act of 1875 by ruling that the
Fourteenth Amendment did not give Congress authority to prevent
discrimination by private individuals. States began segregating most
public facilities, and victims were subject to state jurisdiction.
In 1887, states began requiring separate accommodations on
railroads. Railway companies did not like the extra cost of adding
"Jim Crow" cars.
The
Citizens' Committee to Test the Constitutionality of the Separate
Car Law decided to test the constitutionality of forced
segregation in railroad cars traveling between states. In 1892, the
Supreme Court decided this law was unconstitutional when applied to
interstate travel. The committee, now calling itself the Citizens
Committee to Test the Constitutionality of the Separate Car Law in
Louisiana,
had Homer Plessy (who was one-eighth black) take a seat in the
whites-only area. Plessy informed the conductor that he was black
and the conductor had him arrested. The Louisiana District Court
ruled that a state had the constitutional power to regulate railroad
companies operating solely within its borders, concluding that the
Louisiana Separate Car Act was constitutional. The decision was
appealed to the state Supreme Court in 1893 and was appealed again
to the U.S. Supreme Court in 1896.
At the
Supreme Court,
[Plessy
v. Ferguson] Plessy's lawyer argued that he was denied
his equal protection rights under the Fourteenth Amendment and that
the law violated the Thirteenth Amendment by perpetuating the
essential features of slavery.
Supreme Court
Justice Henry Billings Brown, speaking for the majority, wasn't
convinced. "If the civil and political rights of both races be
equal, one cannot be inferior to the other civilly or politically.
If one race be inferior to the other socially, the Constitution of
the United States cannot put them on the same plane." Enforced
separation treated both blacks and whites equally under the law
because whites were forbidden to sit in black railroad cars. The
lone dissenter, John Marshall Harlan, argued that "everyone knows
that the statute in question had its origin in the purpose, not so
much to exclude white persons from railroad cars occupied by blacks,
as to exclude colored people from coaches occupied by or assigned to
white persons."
Jim Crow
segregation laws remained for almost sixty years. In 1954, the
Supreme Court ruled that "separate but equal" facilities
violated the Constitution in the case of
Brown v. Board of Education of Topeka. "Segregation
of white and colored children in public schools has a detrimental
effect upon colored children. The impact is greater when it is the
sanction of the law; for the policy of separating the races is
usually interpreted as denoting inferiority of the the Negro group.
A sense of inferiority affects the motivation of the child to learn.
...We conclude that in the field of public education the doctrine of
'separate but equal' has no place. Separate educational facilities
are inherently unequal."
Prior to its
passage, our federal Bill of Rights only applied to the federal
government. But due process, written into the Fourteenth Amendment,
was used to incorporate similar rights to be protected by the
states--rights that reflected fundamental principles of liberty or
were considered inalienable. Freedom of speech and press were among
the first rights to be incorporated, beginning with
Gitlow v. New York (1925). Other rights have been
incorporated on a case by case basis. Amendments Two and Three and
portions of Amendments Five, Seven, and Eight stand out as not
having been applicable to state government.
There have
been many controversial rulings made by the court. Some that
particularly stand out are based on penumbra--implied protection,
reach, application, or consideration derived from explicitly
enumerated rights spelled out in the U.S. Constitution. For example,
in
Griswold v. Connecticut (1965), there is an idea that
the First Amendment has a penumbra of privacy which is protected
from governmental intrusion. This right to privacy was later used to
support the right to an abortion in
Roe v. Wade (1973).
The
"establishment clause" prohibits the government from creating an
official religion or giving preferential treatment to one religious
group. The "free exercise clause" prohibits the government
from interfering with religious expression. Nowhere does the
Constitution say that there is to be a wall of separation between
church and state. However, in 2002, there was a huge conservative
backlash played out on the Internet over the ordered removal of
Alabama Supreme Court Chief Justice Moore's Ten Commandments
monument in the Alabama state courts building because of its alleged
government endorsement of religion. Since then, many more lawsuits
have been filed by the American Civil Liberties Union and Americans
United for Separation of Church and State to remove such displays.
In
Stanford v.
Kentucky
(1989), it was decided that individual states would decide
whether or not to use capital punishment with seventeen- or
sixteen-year-olds. Based on foreign law and the majority consensus
to abolish juvenile capital punishment in thirty-two states,
however, it was determined in
Roper
v. Simmons (2004) that it was cruel and unusual
punishment to execute a juvenile under age eighteen. This ruling
ignores that the power to write law belongs to the legislative
branch of the government. In reaction to the use of foreign law to
make their argument, Florida Rep. Tom Feeney introduced a nonbinding
resolution instructing the judiciary to ignore foreign precedent
when making their rulings. By citing foreign law they may be subject
to impeachment.
Probably the
most controversial ruling in recent days is
Kelo
v. New London (2005). A 5-4 majority of the Supreme
Court supported the opinion of the Connecticut Supreme Court that,
The use of
eminent domain for economic development [the central focus of the
case] did not violate the public use clauses of the state and
federal constitutions. If an economic project creates new jobs,
increases tax and other city revenues, and revitalizes a depressed
(even if not blighted) urban area, it qualifies as a public use. The
court also found that government delegation of eminent domain power
to a private entity was also constitutional as long as the private
entity served as the legally authorized agent of the government.
(Wikipedia)
There are
serious implications to this decision, not the least of which that
property owners can no longer be secure in the knowledge that their
home is their castle.
The court is
supposed to be independent of political influence. However, it can
be argued that many have tried and succeeded in influencing court
decisions. The most blatant example of overt influence is Franklin D
Roosevelt's court-packing scheme of 1937. He wanted to add six
additional justices to the court who would be favorable to his New
Deal reforms, because the members of the court kept striking down
his programs as unconstitutional.
Roosevelt
had the votes needed to pass his
Judicial Reorganization Bill. However, one of the court
members began voting for Roosevelt's
New Deal programs. Newspapers reported the reversal as, "The
switch in time that saved nine." Another justice retired, and
Roosevelt was given the opportunity to nominate a judge who embodied
his views. The momentum for the bill declined. In 1948, a law was
passed that set the number of the Supreme Court members at nine.
Charges of
judicial activism are leveled when judges interpret the meaning of
the law to advance a political agenda--which can greatly affect
public policy. In his article, "Invoking the Clinton Precedent" (Los
Angeles Times), Ronald Cass wrote:
Much of the
liberal political agenda that could not muster support at the polls
has been achieved through the courts. Would voters sanction
government taking private property from one person to give to
another? Would they approve banning the Pledge of Allegiance as an
unconstitutional intrusion of God into our public life?
Unless courts
keep altering legal rules to facilitate liberal causes, Democrats
label judges conservative activists, and view anyone who supports
them as wanting to take us back to the days of segregated lunch
counters and back-alley abortions. It's a mantra that worked against
Robert Bork, so why not use it against everyone else?
Some view
judicial activism as a bad thing, while others find it acceptable,
even good. To prevent judicial activism, some say, the Constitution
should be interpreted to mean what it was understood to mean at the
time of its inception. Creating law should be left to the
legislative branch of government, because its members are elected to
represent the will of the people and the states; and the only way to
change the meaning of the Constitution was through amendment. Others
say that judges should view the Constitution as a "living" document,
the principles of which "evolve," and should interpret it to make it
more relevant to contemporary circumstances. Justice Antonin Scalia
vehemently disagrees with idea of the living document. Associated
Press writer, Jonathan Ewing reports him as saying,
"That's the
argument of flexibility and it goes something like this: The
Constitution is over 200 years old and societies change. It has to
change with society, like a living organism, or it will become
brittle and break."
"But you would
have to be an idiot to believe that," Scalia said. "The Constitution
is not a living organism, it is a legal document. It says something
and doesn't say other things."
It is up to
the president to nominate members of the Supreme Court. There are no
minimum age or citizenship requirements, and many previous justices
acquired no judicial experience before their appointments. Nominees
should only be rejected if they are unqualified for the job.
However, political affiliation and judicial philosophy has
influenced the success of a nomination. It is interesting to note
that some political pundits have the expectation that a nominee
should have attended a prestigious law school, but research has
uncovered that the faculty at most prestigious law schools have
liberal dispositions.
The Supreme
Court term begins on the first Monday in October. Court sessions run
until late June or early July. The term is divided between sittings,
when the justices hear cases and deliver opinions, and intervening
recesses, when they consider the business before the court and write
opinions.
There are
many traditions to which the court has adhered throughout history.
For example, it is customary in American courts to seat justices by
seniority on the bench. In the center is the chief justice; to
his/her right is the senior associate, the second senior to his
left, again right, left, and so on. Justices customarily wear black
robes while in court.
The
Conference Handshake is used each day; when the Justices assemble to
go on the bench and at the beginning of the private conferences,
during which they discuss their decisions. Each justice shakes hands
with each of the other eight, as Chief Justice Fuller initiated so
long ago, to emphasize that differences of opinion on the court do
not preclude overall harmony of purpose. As in past
centuries, quill
pens are placed on counsel tables each day that the
court sits. The star beneath the eagle's claws on the seal of the
Supreme Court symbolizes the Constitution's creation of "one Supreme
Court."
The newest
chief justice, John G. Roberts, was sworn in to office in September
2005. Justice Samuel Alito recently replaced retiring Justice Sandra
Day O'Connor, the first woman to serve on the Supreme Court.
The judicial
branch, like the other two branches of the government, is supposed
to be held accountable for its members' behavior on the bench. It is
up to the legislative branch to impeach and try sitting judges for
"bad behavior." Samuel Chase is the only Supreme Court justice to
have been impeached. His crime was behaving in a partisan manner by
making inflammatory political speeches to juries and campaigning for
President Adams. He was not convicted and remained in his position
until his death. This set the precedent that justices would not be
removed from office for their political opinions. Having an opinion
and acting on it are two different animals.
The
million-dollar question is, if the legislative branch won't hold
judges accountable for inappropriate use of their power, who will?
Some
believe that judges should be subject to term limits. Perhaps they
would be less inclined to strike down laws enacted by the
legislature, unless they are clearly prohibited by the Constitution.
Suggestions, anyone?
|
