Most Americans know very little about the Supreme Court. It’s barely an afterthought in the mind of most people and only in the mainstream news when a “major” decision is announced or one of the nine Justices retires or dies. So, aside from the “highest court in the land,” what is the Supreme Court?
The Constitution established the court as a co-equal branch of the Federal government; however, over the years the Court has given itself (and the President and Congress) more power. Starting with the ruling in Marbury v. Madison (1803), Chief Justice John Marshall held that the Supreme Court could overturn a law passed by Congress if it violated the Constitution, legally cementing the power of judicial review (the idea that courts may oversee and nullify the actions of another branch of government). This continued with Martin v. Hunter’s Lessee (1816), the first case to assert ultimate Supreme Court authority over state courts in matters of federal law. Later, in the Slaughter-House Cases, the Court interpreted the Fourteenth Amendment to “incorporate” most portions of the Bill of Rights, making these portions, for the first time, enforceable against the State governments. One controversial decision came in a lesser known case Santa Clara County v. Southern Pacific Railroad (1886) in which the Court gave “personhood” to corporations. And in the 1930’s, when FDR threatened to add more Justices in a “court packing scheme,” the Court suddenly began to rule in favor of an expanded interpretation of the Constitution, thus allowing the “New Deal” to proceed.
That is a very brief history of the Supreme Court and in no way meant to be complete. However, the above paragraph is about as much as most students learn about the Court in school. For example, how many people were taught about impeached Supreme Court Justice Salmon P. Chase? Or that President Taft would later become Chief Justice?
The anti-federalists were wary of the Supreme Court; Brutus (one author of anti-federalist papers) wrote, “History furnishes no example of a free republic, anything like the extent of the United States. The Grecian republics were of small extent; so also was that of the Romans. Both of these, it is true, in process of time, extended their conquests over large territories of country; and the consequence was, that their governments were changed from that of free governments to those of the most tyrannical that ever existed in the world.”
Gary Galles wrote on LRC “Brutus accurately described both the cause (the absence of sufficient enforceable restraints on the size and scope of the federal government) and the consequences (expanding burdens and increasing invasions of liberty) of what would become the expansive federal powers we now see all around us.
“Brutus would conclude that he had been far too optimistic. The federal government has grown orders of magnitudes larger than he could ever have imagined (in part because he was writing when only indirect taxes and the small federal government they could finance were possible, before the 16th Amendment opened the way for a federal income tax in 1913), far exceeding its constitutionally enumerated powers, despite the constraints of the Bill of Rights. The result burdens citizens beyond his worst nightmare.”
In the past 100 years the Court has decided cases, not necessarily against the Constitution and federal law, but against past court decisions, articles in various Law Journals and even citing “International Law.”
Jon Roland of the Constitution Society writes, “Some of the disagreement is not with the way court decisions were made, but with the opinions that justified them. Some is with a doctrine of stare decisis of binding, rather than only persuasive, precedent, as inconsistent with a written constitution being the supreme law, and not court decisions.”
The Supreme Court is no longer a co-equal branch of the federal government; they have slowly made themselves “above reproach;” the Supreme Court has made itself the final authority.