“Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution.”
–Alexander Hamilton (1)
“The Founders created the Supreme Court as a critical, presidentially appointed-for-life check on the popular will.”
–Paul Street (2)
The Supreme Court—Unbiased Umpire or Crooked Referee?
In the quotes above, Alexander Hamilton and Paul Street come to dramatically different conclusions about the federal judiciary’s power and impact. In Federalist #78, Hamilton argued that the legislative branch was powerful because it “commands the purse,” meaning that it taxes and spends. He also wrote that the legislative passes laws whereby it “prescribes the rules by which the duties and rights of every citizen are to be regulated.” The executive branch enforces law, which Hamilton metaphorically describes as “hold[ing] the sword of the community.” The judicial branch, on the other hand, was to be less feared because it “has no influence over either the sword or the purse,” but merely has judgment. Street would say that Hamilton vastly underestimated the federal judiciary’s power—especially the Supreme Court—to use the Constitution to recognize rights for some and deny them to others. Moreover, Hamilton seems to be saying that the Court is just like an unbiased baseball umpire who calls balls and strikes, while Street would say that the Court acts like a biased basketball referee who, by calling fouls, unfairly decides who wins the game.
Given the Supreme Court’s conservative bias (see chapter 35), one would think that only progressives would complain that the Supreme Court is an all-powerful, crooked referee. However, conservatives have at times also bitterly resented particular Court decisions. Indeed, complaining about Supreme Court decisions has long been a national pastime for both conservatives and progressives alike. Still, things feel differently now. With frequent gridlock between Congress and the President and strong popular support for the kinds of progressive economic and social policies enjoyed by other wealthy democracies but not in the United States, Supreme Court has positioned itself as the unelected arbiter of rights, privileges, immunities, and political success or failure. The conservative constitutional scholar Kimberly Wehle best summarized the situation: “By its own maneuvering, the modern Supreme Court has made itself the most powerful branch of government. Superior to Congress. Superior to the president. Superior to the states. Superior to precedent, procedure, and norms. In effect, superior to the people.” (3)
What are we to make of these different interpretations of the Supreme Court’s power and political role? Before we explore that question, let’s set some context by discussing the Court’s purpose and establishing some basics about how it operates.
Purpose of the Supreme Court
The United States strives to be a country governed by the rule of law, and this goal, ultimately, requires an arbiter who can review legal decisions as objectively as is humanly possible. As this arbiter, the Supreme Court serves two purposes. One is to serve as the final court of appeal for lower courts—there is no appeal if someone loses in the Supreme Court. The second function is to exercise judicial review, which refers to examining the actions of Congress, the executive branch, and the states to determine whether or not they are constitutional. But early in our government’s history, there was some controversy about judicial review. While the supremacy clause implies that the Supreme Court can strike down state actions, the Constitution never explicitly stated whether congressional and executive branch actions could be ruled unconstitutional as well. This matter was settled by Marbury v. Madison (1803), wherein for the first time, the Supreme Court voided a congressional law. (4)
Marbury v. Madison (1803) is an important case that you should know because of its role in establishing judicial review. The 1800 presidential election was a particularly important one in American history, because it marked our first peaceful power shift when Democratic-Republican candidate Thomas Jefferson defeated the incumbent Federalist, President John Adams. With Jefferson’s win, the Federalists also lost their congressional majority. In those days, the new administration started the March after the election, instead of January after the election, as they do now. During the four lame-duck months between November and March, the Federalists, who were still in charge of Congress, passed a Judiciary Act that President Adams signed into law in February 1801. The Judiciary Act created twenty-six new federal district and circuit court judgeships. The Adams administration then rushed to name Federalists to all those new positions, and the Federalist Senate rushed to confirm them all. Of course, the Democratic-Republicans decried the Federalist attempt to pack the federal courts with “midnight judges” of the Federalist persuasion. Remarkably, Secretary of State John Marshall failed to deliver the official commissions to all the judges before Jefferson was sworn in as president on March 4, 1801. Jefferson ordered his new Secretary of State, James Madison, to deliver only some of the commissions that were still on Marshall’s desk.
One of the undelivered judgeship commissions was addressed to William Marbury, who filed suit straight in the Supreme Court and asked it to issue a writ of mandamus—basically an order to Secretary of State Madison to deliver the commission so he could take his place as a federal judge. It took two years before the Supreme Court took the case, and guess what? The same John Marshall, who had failed to deliver the commissions, had been appointed by President Adams to be Supreme Court Chief Justice! It would appear that Marbury had a good case—he was nominated by Adams and confirmed by the Senate. His judicial commission was properly signed by the Secretary of State—it just wasn’t delivered. Writs of mandamus were well established in English common law, allowing courts to order government officials to do their jobs. Moreover, section 13 of the Judiciary Act of 1789 specifically gave the Supreme Court the ability to issue such writs. However, the last thing the Democratic-Republicans wanted was to have the federal courts packed with additional Federalist judges. Marshall was in a jam. If he ruled in Marbury’s favor, he risked having the Jefferson administration ignore the ruling, thereby permanently weakening the Supreme Court.
To get out of his jam, Marshall resorted to legalistic sleight-of-hand. Article III of the Constitution gave the Supreme Court original jurisdiction (more about this in the next section of the text) over a limited set of circumstances, and issuing writs of mandamus wasn’t on that list. This would mean that Marbury made a mistake bringing his case straight to the Supreme Court instead of appealing from a lower court. Thus, Marshall said that due to this legal technicality, he couldn’t help Marbury. But Marshall went further and declared that section 13 of the Judiciary Act of 1789 violated the Constitution and therefore was void. This was exactly the remedy the Democratic-Republicans wanted, so they went along with Marshall in exerting Supreme Court power to strike down congressional legislation that had been passed and signed into law by the president. Marshall, a Federalist, thought the decision would set the Court up to be a check on future Democratic-Republican policies. In his majority opinion, Marshall wrote that “it is emphatically the province and duty of the judicial department to say what the law is,” and that arguments that “courts must close their eyes on the Constitution, and see only the law would subvert the very foundation of all written constitutions.” Marbury v. Madison (1803) is considered one of the most important Supreme Court cases because since it was decided, no one has seriously questioned the Court’s power of judicial review. (5)
The Supreme Court’s power stems from the way our legal system is structured. Even though the Supreme Court decides relatively few cases per year, those decisions carry weight due to the principle of stare decisis, which literally means “to stand by that which is decided.” Courts—particularly those lower than the Supreme Court—must make decisions that are consistent with past decisions on similar cases. Garrett Epps, University of Baltimore constitutional law professor, very aptly described stare decisis this way: “cases, once decided, are not to be overturned simply because new judges come on the Court, or new parties win elections, or newly tenured law professors think they were wrong; the radical step of voiding precedent is saved for cases that have been proven unworkable or unjust in the years since they were decided.” (6) The pressure of stare decisis is exerted downward from the Supreme Court to lower courts. In other words, when the Supreme Court makes a definitive ruling on a matter of law, that decision sets a precedent for other courts to follow in subsequent cases.
Two caveats apply to the power of precedent in lower court decisions: 1) The case at hand must be similar enough to the one that set the precedent. 2) A later Supreme Court can always decide to change precedent by overturning a previous Supreme Court’s decision. Sometimes, it takes decades for the Court’s membership or societal changes to allow it to overturn precedent, and other times it happens fairly quickly. Here’s a good example of a midrange precedent change: In Bowers v. Hardwick (1986), the Court upheld a Georgia law that banned oral and anal sex between consenting adults. Then, only seventeen years later, the Court decided Lawrence v. Texas (2003), reversing its precedent set previously in Bowers. In addition, when the Court decided Lawrence, it struck down a similar Texas law that specifically targeted same-sex partners. A future Court, if given the right case and a sufficiently conservative membership, could decide to overturn Lawrence and take the country back to the days when the right to privacy did not include consensual sexual acts between same sex or heterosexual partners. Of course, such a decision would have tremendous ramifications for all sorts of other matters of law. The Supreme Court rarely overturns its own precedents. David Schultz, a professor Political Science at Hamline University, has done the research and found that in the history of the Court, “it has only overturned its own constitutional precedents 145 times—this is barely one-half of one-percent of all its decisions.” (7) One of the most important recent examples of the Supreme Court overturning precedent occurred in the Dobbs v. Jackson Women’s Health Organization (2022) case, where the Court stripped from women the Constitutional right to choose to terminate a pregnancy as articulated in the Roe v. Wade decision from 1973.
Operation of the Supreme Court
Most Supreme Court cases come on appeal, but the Court is under no obligation to hear all appealed cases. In fact, the Court refuses to hear the vast majority of the thousands of appeals that it receives. What happens then? The next lower court’s decision stands. For example, widower Walter Daniel, whose wife died while giving birth in a military hospital, tried to get the Supreme Court to carve out an exception to Feres v. United States (1950). In this precedent-setting case, the Court said that military personnel cannot sue the United States “for injuries to members of the armed forces arising from activities incident to military service.” Daniel argued that even though his wife was in the military, her labor and delivery were far removed from the battlefield or even her position’s duties, and thus his wife’s case ought not to be covered by Feres. Daniels wanted to sue for malpractice damages, holding the negligent military hospital responsible for his wife’s death. Daniel lost in the Ninth Circuit Court of Appeals, which followed the Feres precedent, and the Supreme Court refused to take the case. Therefore, Walter Daniel was left with the Ninth Circuit’s decision against him. (8)
The most common way to appeal to the Supreme Court is to petition for a writ of certiorari, which is a formal request to review a lower court’s decision. Such petitions are governed by an informal rule of four, whereby four or more justices must agree to take the case. If the rule of four condition is met, then the Supreme Court issues a writ of certiorari—an order to the lower court to send up the case’s records and an announcement that the Court is taking a case. Since certiorari is difficult to pronounce, people normally say or write that “cert has been granted,” or “cert has been denied” by the Court. Normally, a petitioner must pay a fee and meet paperwork requirements to petition for a writ of certiorari, but indigent petitioners can file in forma pauperis, which waves the fee and many of the paperwork requirements.
The people or groups involved in a case are called the litigants. The petitioner brings the case or the appeal, and the respondent answers. Despite whether the U.S. government is the petitioner or the respondent, the solicitor general handles the case; this is a Justice Department position dedicated to this function. The petitioner’s name is written first in the case’s title. Thus, in a case named Plessy v. Ferguson (1896), we know that Plessy is the petitioner bringing the case to the Court. This also tells us that Plessy lost in the lower court, hence the appeal to the Supreme Court. When the Supreme Court accepts a case, the litigant’s lawyers file legal briefs for the justices to examine. Legal briefs are written legal documents arguing why precedent supports their client’s case and potential victory. At this time, other individuals or groups who are not litigants, but nevertheless interested in the case’s outcome, may file what are known as amicus curiae briefs. Amicus curiae means “Friend of the Court.” Amicus curiae briefs are additional legal arguments filed by outside individuals or groups attempting to influence the Court’s justices. It is not uncommon in a significant Supreme Court case to have dozens of amicus curiae briefs filed. In what kinds of cases do you think the National Rifle Association would file amicus curiae briefs? What about the U.S. Chamber of Commerce? What about individual states or groups of states?
After briefs have been filed, the Court picks an oral argument date. Oral argument takes place in public sessions on Mondays, Tuesdays, and Wednesdays from October to May, and there is a public gallery, so visitors can watch the Supreme Court work. Normally, petitioner and respondent’s lawyers are each allowed thirty minutes to present their case to the assembled justices, but the Roberts Court has often been allowing the litigants’ lawyers more time. Some justices interrupt the lawyers often to ask questions that occurred to them while they were reading briefs. Others listen quietly to the presentations. Often, justices want lawyers to discuss the case’s broader implications regarding the Court’s possible decisions one way or another. If the U.S. government is one of the litigants, the solicitor general will likely handle the case’s oral argument.
Oral arguments can be found online. Here is the oral argument in Trump v. Vance (2020), in which President Trump’s lawyers argued that the sitting president could not be criminally investigated. The president’s lawyers go first, followed by the respondent’s lawyers. Listen to how the justices ask questions.
Shortly after a case’s oral argument, the Chief Justice presides over the justices in a conference meeting where they reach a preliminary decision on the case. The Chief Justice speaks first, followed by the other justices in the order of their seniority on the Court. This conference meeting is very private, with only the justices allowed in the room. The justice with the least seniority “acts as ‘doorkeeper,’ sending for reference material, for instance, and receiving it at the door.” (9) Their deliberation’s outcome is made public, but their conversations are private and largely the subject of speculation.
The Supreme Court operates by majority vote, so decisions can be 9-0, 8-1, 7-2, 6-3, or 5-4. The decision’s legal validity does not depend on the margin of victory, but the political weight of the decision is affected by it. Politically, a there is a world of difference between a 5-4 decision and a 9-0 decision. Someone in the winning majority writes a majority opinion, which explains the Court’s decision in terms of its compelling legal precedent. If the Chief Justice is in the majority, they will assign who writes it; if the Chief Justice is not in the majority, the most senior justice voting with the majority will assign the majority opinion. Someone in the minority writes a dissenting opinion, which explains why the minority feels the majority erred in applying precedent or constitutional principle. Assigning the dissenting opinion operates just like that of the majority opinion. Majority opinions carry legal weight in the form of precedent, and they also instruct legislators about how acceptable the proposed legislation is. Dissenting opinions do neither of those things, but they do become important if the Supreme Court decides later to reverse itself. Perhaps because they lack legal importance, dissenting opinions are usually more fun to read than majority opinions. Sometimes, justices agree with each other enough to create a majority vote but may do so for different legal reasons. In this case, a justice may write a concurring opinion explaining their unique legal reasoning for voting with the majority.
This has been a very quick tour of the Supreme Court’s purpose and operation. The Court has taken on immense significance in American life. It has, at times, validated horrific policies like slavery and segregation. On other occasions, it has confirmed shifts in public opinion, such as its decision to strike down bans against same-sex marriages. While Alexander Hamilton was correct that the Court possesses neither the “sword or the purse,” it is far from being a lesser branch of government.
What if . . . ?
If you could articulate a purpose for the Supreme Court that was different from what it is now, what would it be? Could you add to, subtract from, or modify its role in ways that would be a net positive for the United States?
- Alexander Hamilton, Federalist Papers #78.
- Paul Street, “The Real Constitutional Crisis: The Constitution,” Counterpunch. November 8, 2019.
- Kimberly Wehle, “The Supreme Court Just Keeps Deciding It Should Be Even More Powerful,” The Atlantic. March 13, 2023.
- Joel B. Grossman and Richard S. Wells, Constitutional Law and Judicial Policy Making, Second edition. New York: Wiley and Sons, 1980. Page 87. The authors of this classic text note briefly that in 1851, scholars discovered an unreported opinion from 1794 in which the Court had declared a federal law unconstitutional. Thus, Marbury remains the first case of any political importance.
- This entire discussion of Marbury v. Madison (1803) draws on the recounting in Peter Irons, A People’s History of the Supreme Court. New York: Penguin Books, 2000. Pages 103-107.
- Garrett Epps, “When the Supreme Court Doesn’t Care About Facts,” The Atlantic. February 27, 2018.
- David Schultz, “The Supreme Court and the Coming End of Abortion Rights,” Counterpunch. October 1, 2021.
- James Clark, “Supreme Court Refuses to Hear Yet Another Challenge to the Controversial Feres Doctrine on Military Medical Malpractice,” Task & Purpose. May 20, 2019.
- No Author, “The Justice’s Conference,” The Supreme Court Historical Society.
- Supreme Court © U.S. Department of State is licensed under a CC BY-NC (Attribution NonCommercial) license