Supreme Court (Role in American Government)

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SUPREME COURT (Role in American Government)

The Supreme Court is the only court in the United States whose existence is mandated by the Constitution, yet the Constitution designates no number of judges for the Supreme Court and sets no qualifications for judicial service. So far as the Constitution is concerned, the Supreme Court could as readily consist of two or of twenty-two judges, rather than of nine as has been the case since 1870. And so undemanding is the Constitution in setting qualifications for appointment to the Supreme Court that its members could consist entirely of persons not qualified to serve in either House of Congress, for which at least a few minimum standards of eligibility (of age and of citizenship) are constitutionally prescribed. The Constitution speaks simply to the vesting of the judicial power of the united states in "one supreme court, and in such inferior Courts as the Congress may from time to time ordain and establish," but it leaves much else to discretion and a great deal to chance.

The role of the Supreme Court in American government is much like this overall. Some impressions of what the Court's role was meant to be can be gained from what the Constitution says and from the immediate history of 1789, as well as from the categories of jurisdiction assigned to the Court by Article III. But much of that role is also the product of custom and of practice about which the Constitution itself is silent.

The constitutional text itself suggests several ways of describing the Supreme Court's role, in conformity with Article III's prescriptions of the Court's jurisdiction. The useful jurisdictional distinctions are of four principal kinds, each providing some insight into what the Court was originally expected to do.

First mentioned is the Supreme Court's jurisdiction as a trial court, an original jurisdiction invocable by certain parties in particular (states and representatives of foreign states) but by no one else. Second is that branch of its appellate jurisdiction applicable also solely because of who the parties are, irrespective of the nature of the dispute between them. Third is the Court's appellate jurisdiction that attaches solely because the case involves a federal statute or treaty of the United States, or arises under admiralty and maritime law, without regard to who the parties may be and whether or not any constitutional question may be involved. Finally, the Court may exercise an appellate jurisdiction over "all cases arising under [the] Constitution," a phrase construed broadly to include any case in which the outcome may be affected by a question of constitutional law. It is the application of this phrase, of course, that tends to fix the Supreme Court's most important role, but as can be seen from the foregoing larger enumeration, it is not by any means the sole business to which the Court was expected to attend.

The role of the Supreme Court as a court of original jurisdiction has been useful but minor. Ordinarily, the Court's small complement of original jurisdiction has merely expedited its speedy examination of certain legal issues raised by states against other states (typically involving boundary or interstate river claims) or against the national government, as in oregon v. mitchell—a 1970 decision holding unconstitutional one portion of an act of Congress that sought to override state voting age restrictions. Because Congress can provide for expedited Supreme Court review of cases originating in other courts, however, it is doubtful whether this feature of Article III has been terribly vital. Its one theoretical importance may be that the original jurisdiction it provides to the states is guaranteed against elimination by Congress—for unlike the Court's appellate jurisdiction, its original jurisdiction is not subject to the "exceptions" clause of Article III.

Dwarfing the Court's role as a court of original jurisdiction is its much larger and more familiar role as the ultimate appellate court in the United States for a vastly greater number and variety of disputes, although the Court is not obliged to review all such cases and in fact hears but a small fraction of those eligible for review. The cases eligible for review, some on appeal and a larger number on petition for a writ of certiorari, are divisible into two principal categories: those in which the character of the contesting parties makes the case reviewable, and those in which the nature of the legal issue raised by the case makes the case reviewable.

In the first category of cases within the Court's appellate jurisdiction there are many that raise no constitutional questions and indeed need not raise any kind of federal question. As these cases are within the Court's power of review solely because of the parties, regardless of the subject in dispute between them, they may involve very ordinary legal issues (for example, of contract, tort, or property law) as to which there is no special expertise in the Supreme Court and no obvious reason why they need be considered there. And in practice, they are not reviewed.

Part of the original interest in providing the Supreme Court as the ultimate appellate tribunal in the United States reflected the Framers' desire to provide an appellate court for litigants likely to be sued in hostile jurisdictions—cases, for instance, arising in state courts which nonresident defendants might fear would be inclined to favor local parties as against outsiders. Since the furnishing of lower federal courts (to hear such cases) was left entirely optional with Congress to provide or not provide as it liked, the Supreme Court's appellate jurisdiction even from state court diversity cases was directly provided for in Article III. Nonetheless, in the course of 200 years the felt need for such cases to be heard in the Supreme Court has never materialized—although such cases remain a staple of lower federal court jurisdiction. (Efforts in Congress to repeal this entire category of lower federal court jurisdiction are more than a half-century old, but they have been only partly successful, largely in restricting such cases to those involving sums in excess of $10,000.) In the meantime, however, the Supreme Court does not review such cases and, by act of Congress, it is under no obligation to take them. This particular anticipated role of the Supreme Court, as an active court in hearing appeals in ordinary diversity cases presenting no federal question and implicating no general interest of the United States, has never been significant in fact.

In contrast, the second branch of the Supreme Court's appellate jurisdiction—identified not by the parties but by the nature of the legal questions—remains intensely active. Indeed, the principal role the Court plays today as an appellate court undoubtedly arises almost entirely from this subject matter assignment of appellate jurisdiction of cases involving disputes of national law. In these cases the Court interprets acts of Congress and treaties of the United States as well as the Constitution as the ultimate source of governing law in the United States.

Specifically, these cases may raise any of the following four kinds of basic conflicts: conflicts between claims relying upon mutually exclusive interpretations of concededly valid acts of Congress or treaties of the United States; between constitutional claims of state power and claims of federal power (federalism conflicts); between constitutional claims by Congress and claims by the President or claims by the judiciary (separation of powers conflicts); or between constitutional claims of personal right and claims of either state or of national power (personal rights conflicts). A principal function of Article III was to establish the Supreme Court as the ultimate national court of appeals to provide finality and consistency of result in the interpretation and application of all federal and constitutional law in the United States, within the full range of these four fundamental and enduring concerns.

For nearly the first hundred years (1789–1875), almost all appeals to the Supreme Court on such federal questions as these came from state courts rather than from lower federal courts. Not until 1875, in the aftermath of the civil war, were lower federal courts given any significant original (trial) jurisdiction over private civil cases arising under acts of Congress or treaties of the United States. Since 1875, moreover, many federal question cases still proceed from state courts to the Supreme Court, because reliance on some federal law or on the Constitution often arises only in answer to some claim filed in a state court and thus emerges only by way of defense rather than as the basis of complaint.

The fact that this arrangement of the Court's appellate jurisdiction places the Supreme Court in appellate command over all other courts in the United States in all federal question cases is exactly what makes the Supreme Court supreme. In constitutional matters, for instance, this fact is the basis of Justice robert h. jackson's observation, in speaking of the Court, that "[w]e are not final because we are infallible, but we are infallible only because we are final," that is, superior in constitutional authority to review the determinations of other courts and in turn unreviewable by any other court. It likewise animates the 1907 observation by charles evans hughes (later Chief Justice of the United States). "We are under a Constitution," Hughes acknowledged, "but the Constitution is what the judges say it is," since it is their view and, most important, the Supreme Court's view, that ultimately controls in each case. And even when no constitutional issue is present, but the issue is how an act of Congress shall be interpreted and applied, the finality of the Supreme Court's appellate jurisdiction is equally pivotal; it is the Americanized version of Bishop Hoadley's observation in 1717, in reference to the power of the English courts in interpreting acts of Parliament. "Whoever hath an absolute authority to interpret any written or spoken laws," Hoadley observed, "it is he who is truly the lawgiver, to all intents and purposes, and not the person who first spoke or wrote them." From an early time Americans seem to have believed in the wisdom of reposing in the courts—and ultimately in the Supreme Court—the responsibility of substantive constitutional review, and it seems clear (despite some scholars' qualified doubts) that the Supreme Court was indeed meant to exercise that responsibility. (See judicial review.) It is unquestionably this role of substantive constitutional review that marks the special position of the Supreme Court.

The Supreme Court's decisions in constitutional cases may be roughly divided into three kinds, according to which its role in American government is occasionally assessed or described. The three kinds of decisions are these: legitimizing, braking, and catalytic.

A decision is said to be legitimizing whenever the Court examines any act of government on constitutional grounds and finds it not wanting. In holding that the act as applied is in fact authorized by the Constitution and not offensive to any of its provisions (for example, the bill of rights or the fourteenth amendment), the Court thus vouches for its constitutional legitimacy. A decision may be called a braking decision whenever its immediate effect is necessarily to arrest the further application of an act of Congress because the Court holds the act either inapplicable or unconstitutional, or whenever obiter dicta accompanying the decision serve notice of constitutional barriers in the way of similar legislation. Finally, a decision may be called catalytic when its immediate practical effect is to compel highly significant action of a sort not previously forthcoming from national or state government.

A significant and controversial example of the legitimizing sort is plessy v. ferguson (1896), the case sustaining certain state racial segregation laws as not inconsistent with the Fourteenth Amendment, despite intense argument to the contrary. A modern example of the same sort may be fullilove v. klutznick (1980), a case sustaining a limited form of racial discrimination in favor of certain minority contractors as not inconsistent with the Fifth Amendment, despite intense argument as well. In each case, the Court considered a previously untested kind of race-related law. In each, the Supreme Court's decision could be said effectively to have impressed the operative law with a judicial imprimatur of constitutional legitimacy, given that in each case the challenged statute was sustained.

Examples of the braking sort may be found in the Court's early new deal decisions holding Congress unauthorized by the commerce clause to supplant state laws with its own much more sweeping and detailed economic regulations. In this instance, the critical decisions of the Court forced a momentary pause in the onrush of legislation, compelling more deliberate attention to what the nation had been and what it meant to become. As it happened, the braking effect of these cases was eventually overcome, but it is nonetheless true that in the meantime the position taken by the Court played a sobering role. In a few other instances, the braking effect of equivalent cases was overcome by formal amendment of the Constitution itself: the sixteenth amendment, for instance, was adopted principally to overcome the effect of the Court's decision in pollock v. farmers ' loan & trust (1895); the Thirteenth Amendment and Fourteenth Amendment displaced the Court's decision in dred scott v. sandford (1857); and the twenty-sixth amendment displaced the decision in Oregon v. Mitchell. These reactions are by themselves not an indication that the Court has erred, of course, since the Constitution itself separates the role of the Court from the formal processes of constitutional modification. (See amending process.) Any decision in the Supreme Court holding a statute unconstitutional may provide occasion to activate the amending process provided for in Article V. Amendments by themselves are not proof that the decisions they effectively overrule were necessarily poorly conceived. They may, rather, but mark new Cambrian rings in what is meant to be a living constitution.

An example of a catalytic decision would be one holding certain prison conditions to be so inadequate as to constitute a form of cruel and unusual punishment, such that either the prisoners must be released (which public authorities are loath to do), or large sums must be raised and less congested prisons must be built. The change-forcing nature of the Court's catalytic decision is but descriptive of its practical implications. By itself it thus carries no suggestion that the Court acted from impulse rather than from obligation, in ruling as it did. The same observation may apply equally to the other two categories of decisions.

Thus, in the "legitimizing" decision there is no necessary insinuation that the measure that has been sustained is on that account also necessarily desirable or well-taken legislation; such questions are ordinarily regarded as no proper part of the judicial business. Adjudicated constitutionality properly vouches solely for an act's consistency with the Constitution, which consistency may still leave much to be desired, depending upon one's own point of view and one's feeling of constitutional adequacy. Similarly, it does not follow that an act's adjudicated unconstitutionality necessarily implies its undesirability or, indeed, that there would be anything terribly wrong were the Constitution amended so that similar legislation might subsequently be reenacted and sustained. It means merely that the act does not pass muster under the Constitution as it is and as the judges are oath-bound to apply it until it is altered.

So also with catalytic decisions: such forced change as a particular decision may produce is required simply to bring the conduct of government back within constitutional lines as they are, and not as they need be. As conscientiously applied by the Court, the Constitution thus speaks to such constitutional boundaries as were put in place sometime in the past, from a considered political judgment of the time that such boundaries would be important. The judgment is wholly an inherited one, however, and contemplates the possibility of amendment to cast off such restraints as subsequent extraordinary majorities may find unendurable. Viewed in this way, the Constitution is a device by means of which past generations signal to subsequent generations their cumulative assessment of what sorts of restraints simple majoritarianism needs most. The Supreme Court is the ultimate judicial means by which the integrity of those restraints is secured against the common tendency to think them ill-conceived or obsolete, sustaining them when pressed by proper litigants with suitable standing, until instructed by amendment to acknowledge the change. It is a signal responsibility and an unusual power—one which few other national supreme courts have been given.

On the other hand, the phrases "legitimizing," "braking," and "catalytic" are not always used so descriptively, however well they capture the by-products of the Court's work. Rather, they are sometimes used prescriptively, and thus in an entirely different sense. In this different usage they presume to provide a more jurisprudential blueprint for the role of the Supreme Court: that it is appropriate for the Court actively to serve these three functions politically as it were, and to involve the Constitution only instrumentally in their service. Employed in this different locution, they are phrases used to express faith in a specific kind of judicial activism, according to which the right role of the Court is to identify the needs of efficient and humane government and to adjust its own adjudications accordingly.

In this view, it is in fact the proper role of the Supreme Court to legitimate (by holding constitutional) such laws as circumstances persuade it ought not be disapproved, to brake (by adverse construction or by holding unconstitutional) such developments as it determines to have been precipitously taken or otherwise to have been ill-advised, and to catalyze (by artful action) such changes it deems highly desirable but unlikely to be forthcoming from government unless the Court so requires. The persuasive justification for the Supreme Court lies in what it can do best as a distinct institution, in this view, and only secondarily in adhering to the Constitution. And what the Supreme Court can do better than others is to compensate for such gaps as it finds in the Constitution or in the political process, and to take such measured steps as it can to repair them. Accordingly, the more appropriate role of the Supreme Court is to conduct itself institutionally as best it can to contribute actively to a better political quality of life in the United States: in deciding which cases to hear, when to hear them, on what grounds to decide them, and how to make them come out in ways most in keeping with these three vital functions of granting legitimacy to the good, putting brakes on the bad, and compelling such changes as are overdue.

As an original jurisprudence of proposed judicial role, this perspective on the Supreme Court has had considerable occasional support. In the concrete, moreover, there is good reason to believe that certain Justices—probably a nontrivial number—have embraced it in selected aspects of their own work. At the least, there are a large number of constitutional decisions that appear to reflect its view of what judges should seek to do, as indeed some Justices have virtually absorbed it as an articulate feature of proper judicial review; their decisions seem sometimes to be based on little else.

Still, and for obvious reasons, it remains deeply problematic, for at bottom it would have the judges struggle against the obligation of their oaths. Insofar as cases such as Plessy or Fullilove were to any extent self-conscious efforts by a Supreme Court majority simply to legitimate race-based arrangements it thought desirable, and not decisions reporting a difficult judicial conclusion respecting the lack of constitutional restrictions on the legislative acts at issue, for instance, it is doubtful whether the "legitimacy" thus established was appropriate or, indeed, constitutionally authorized. Likewise, insofar as the early New Deal cases were to any extent simply a deliberate institutional attempt by the majority Justices to arrest what they thought to be ill-advised varieties of market intervention, and not decisions reflecting an attentive interpretation respecting the limits of Congress's commerce power, it is debatable whether the "braking" thus applied was appropriate or authorized. So, too, with such decisions as may be catalytic, but which may be driven more by a judicial desire to see changes made than by a mere firm resolve that the Constitution shall be obeyed.

Without doubt, however, the tendency to urge the Supreme Court to compose its interpretations of the Constitution in subordination to allegedly significant social tasks remains widespread. Moreover, the malleability of many constitutional clauses invites it, and the political staffing mechanism (provided by Article III) for selecting the judges may appear obliquely to legitimate it. The tendency to rationalize its propriety is deeply entrenched.

Even so, the conscious treatment of constitutional clauses as but textual or pretextual occasions for judicial legitimation, braking, or social catalysis, does tend to pit the Court against itself in its disjunction of fundamentally incompatible roles. The resulting tension has split the Court virtually from the beginning. It divides it even now: between these two visions of the Court, as a professional court first of all or as a political court first of all, lie two centuries of unsteady swings of actual judicial review. The history of the Supreme Court in this respect but reiterates a classic antinomy in American constitutional law. It doubtless reflects the conflicts Americans tend to sense within themselves—as to what role they genuinely wish this Court to fulfill.

With certain highly notable exceptions (including West Germany, Japan, Australia, and most recently Canada), the written constitutions of most modern nation-states serve merely as each nation's explanation of itself as a government. Such a constitution typically presents a full plan of government, a statement of its purposes and powers, and an ample declaration of rights. Yet, unlike the Constitution of the United States, such a constitution cannot be invoked by litigants and does not require or even permit courts of law to use it as against which all other laws may be examined. It is, rather, a nonjusticiable document. It is intended to be taken seriously (at least this is the case generally), but only in the political sense that legislative and executive authorities are meant to reconcile their actions with the constitution at the risk of possible popular disaffection should they stray too far from what the constitution provides. Whether the authorities have thus strayed, however, and what consequences shall follow if they have, is not deemed to be the appropriate business of courts of law.

The enormous distinction of American constitutional law has thus rested in the very different and exceptional role of the judiciary, from the most unprepossessing county courts through the hierarchy of the entire federal court system. The unique role of the Supreme Court has been its own role as the ultimate appellate court in reference to that judiciary, most critically in all constitutional cases. The arrangement thus established does not lessen the original obligation of other government officials separately to take care that their own actions are consistent with the Constitution, but it is meant to provide—as effectively as human institutions can arrange—an additional and positive check. When official action is not consistent with the Constitution, as ultimately determined under the Supreme Court's authority, the courts are given both the power and the obligation to intercede: to interpose such authority as they have and to provide such redress as appears to be due. Judged even by international standards, this is an ample role. It is not this role that now appears fairly open to question, moreover, but rather the definition of role that would assume something more or accept something less.

William W. Van Alstyne
(1986)