FREEDOM CORNER: An Evolving Supreme Court

Washington, D.C. – May 1787: America had won its war for independence 4 years prior, but the Articles of Confederation, which had bound the 13 original colonies as United States during the revolution, were failing. A group of 55 delegates from 12 of the 13 states (Rhode Island did not participate) met once again in Philadelphia to renegotiate the terms of a new government.

What was forged during those sweltering summer months was a completely new Constitution; one consisting of three separate branches of government meant to operate within a system of checks and balances to one another. It would take another year for the majority of the states to ratify and an additional 4 years for the Bill of Rights to be added.

This is the first in a series exploring the origins of those branches and how they have evolved in the 238 years since their inception.

Article III: The Judicial Branch

Article III, states: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.”

‘What do you do with these former colonies that have all been operating as distinct judicial systems?’” posited Clare Cushman, Director of Content and Media for the Supreme Court Historical Society in Washington, D.C. “There needed to be one Supreme Court to establish what is rule of law, especially when you have conflicting interpretations of the law between the different states.”

At first, the Supreme Court struggled to find its footing. One particular case early in its nonage cemented its place as the linchpin in our government: “The most important decision in Supreme Court history is Marbury vs. Madison, 1803,” Cushman said. “They used that case to establish that it is the judicial branch … that has the power of judicial review, which means that they can overturn acts of Congress, and… executive orders.”

Marbury vs. Madison arose when William Marbury and several others were appointed to be Justices of the Peace under President John Adams. Adams signed the commissions, but they were not delivered until after Thomas Jefferson was sworn in as America’s third president. Jefferson withheld the appointments made by his predecessor, and Marbury sued Secretary of State James Madison. In ruling against Marbury, the Supreme Court established itself as able to invalidate any law passed by Congress.

Although the concept of judicial review has at times been controversial, it has become an accepted part of the constitutional process. Some critics of the court fear that giving too much judiciary discernment to one small group of individuals leaves too much room for constitutional interpretation.

“Judges that have a judicial policy where they see the Constitution as a living entity think that decisions should be adapted to modern times,” Cushman explained. “Whereas judges that have a judicial philosophy called ‘originalism’ or ‘textualism,’ they’re looking at the original intent of the lawmakers that wrote the law.”

However, being driven by judicial ideology is not the same thing as being driven by political partisanship. In the context of the courts, the terms “liberal” and “conservative” take on different meaning than in the political arena.

“One of the things that the political right has done, I would say successfully, is to promote this idea that there’s always only one right answer to a particular legal or constitutional question,” explained Carolyn Shapiro, a Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at the Chicago-Kent College of Law. “The corollary to that is … that there’s not just disagreement about how to interpret the constitution or the statutes, but one way is legitimate and one way is illegitimate.”

It can seem somewhat antithetical to our democratic ideals that nine unelected officiants should wield so much power over the entire government, but Christopher W. Schmidt, a fellow Professor of Law and Co-Director of the Institute on the Supreme Court of the United States at Chicago-Kent College, said that also may depend on how one defines a democracy.

“If you define democracy as not just always majorities rule but also minority rights being protected, then you have a place for courts and judicial review to sort of step in,” Schmidt said.

As the political landscape changes, so can the Supreme Court. In the Dred Scott case from 1857 the Supreme Court of the time ruled from an originalist’s viewpoint that Black Americans were not eligible to be American citizens due to their Constitutional status as “an inferior class of beings” at the drafting of the Constitution. Less than a decade later, following the events of the Civil War, that ruling began to unravel as popular opinion changed and more socially progressive politicians were elected to office.

The country ratified the 13th and 14th amendments, which declared slavery illegal and that all people born within the United States are citizens by birthright. Four of the seven justices who had ruled with the majority in the Dred Scott case were still serving on the Supreme Court in 1865 when the 13th amendment was ratified. The 14th amendment was enacted three years later.

In 1870, the 15th amendment gave Black American men the right to vote. That congressional act faced several appeals in the Supreme Court. Although never directly struck down, the court severely limited its application, which led to the allowance of targeted and restrictive voting regulations in the south, which became known as Jim Crow laws.

In the Brown vs. the Board of Education case in 1954, the Supreme Court ruled that the racial segregation laws of the Jim Crow era violated the equality clause of the 14th amendment. In 1964 the Supreme Court upheld the constitutional validity of the Civil Rights Act, outlawing discrimination based on race, color, religion, or nation of origin.

The Supreme Court of today has become a hotbed of controversy. That’s not so dissimilar to how it has operated throughout its history, but Schmidt and Shapiro differ on their assessments of the current Supreme Court.

“They’re putting their credibility at stake by the way that they are allowing the Trump administration to do things at least on a temporary basis … that are really, in my view, lawless,” Shapiro said. “We have a big problem in that the current court is exercising judicial supremacy in a different way.”

“Personally, I don’t buy that,” Schmidt countered. “It’s a conservative court, sure, but it’s a normal court. It’s still issuing decisions, it’s still doing so in ways that align with the ideologies of the justices, but that’s nothing new.”

Even before the return of Donald Trump for his second term as president, pundits and law experts had been debating when — not if — he would cause a “constitutional crisis” between the Supreme Court and the executive branch.

“I would describe what we are experiencing as, as much a constitutional failure as a constitutional crisis in part because of the (Supreme) Court,” Shapiro said. “Lower court judges are really doing a very important job of holding the line on separation of powers and checks and balances.”

On that, the two professors can agree.

“I think what we’ve been seeing over the past year and a half — and what we are going to continue to see — is the crucially important role of the courts in pushing back against an executive when they clearly step over constitutional lines,” Schmidt said. “Assuming our constitutional democracy survives, I do think the courts are going to come out probably looking better than they did going in.”