The Judiciary

The Judiciary

The History of the Federal

The power of the Supreme Court evolved slowly.
In the first three years of the nation’s existence, the justices did
not hear any cases at all. The Supreme Court’s immediate priority was
to establish its institutional legitimacy. This goal was accomplished
in a series of developments under the leadership of Chief justice
John Marshall:

(1) defeat of the impeachment
proceeding, based purely on political charges, against justice
Samuel Chase that validated the doctrine of judicial independence;

(2) the issuance of a single majority
opinion that enabled the Court to speak with one authoritative
voice in lieu of each justice writing separately; and

(3) assumption of the power of judicial
review in Marbury v. Madison (1803), making the Supreme
Court an equal partner in the governing process with Congress and
the president.

Once secure in its position, the Supreme Court
turned to the task of adjudication. The history of Supreme Court
decision-making falls into three eras differentiated by the type of
issue that dominated judicial attention during a particular period of

1 . From 1787 to 1861, federal-state
relations and slavery were the great issues. In Martin v.
Hunter’s Lessee (1816)
, the Court asserted its right to
impose binding interpretations of federal law upon state courts.
Three years later, McCulloch v. Maryland (1819) upheld
the supremacy of the federal government in a conflict with a state
over a matter not clearly assigned to federal authority by the
Constitution. Although federal preeminence was written into
constitutional theory, it was not until after the Civil War that
the theory applied in practice. In fact, the Court played an
important role in intensifying regional tensions through its
decision in Dred Scott v. Sandford (1857), in which
federal law (the Missouri Compromise) prohibiting slavery in
northern territories was ruled unconstitutional. This decision,
moreover, was only the second time that a federal law was declared
unconstitutional by the Supreme Court. The Court’s reluctance to
use judicial review attests to its still uncertain status in the
early part of the nineteenth century.

2. From the Civil War to 1937, the dominant
issue was the relationship between government and the economy. The
Court acted to support property rights and held that the due
process clause of the Fourteenth Amendment protected commercial
enterprises from some forms of regulation. The justices were
merely reflecting the prevailing laissez-faire philosophy
of the time. The Court, however, was not blind to the injustices
of capitalism and upheld state regulations in over 80% of such
cases between 1887 and 1910. As the justices attempted to balance
the public interest against private property rights, their
decisions became riddled with inconsistencies in distinguishing

reasonable from unreasonable regulation or in separating
interstate from intrastate commerce. According to justice Holmes,
the Court had lost sight of its mission by forgetting that “a
Constitution is not intended to embody a particular econon-dc
theory.” The necessities of the Great Depression would compel a
revision in constitutional theory on economic issues.

3. From 1938 to the present, the Court has
switched its focus to the protection of personal liberties. This
change was partially prompted by the political pressure generated
by Franklin Roosevelt’s unsuccessful effort to pack the Supreme
Court with justices favorable to his New Deal economic package. As
the Court allowed the government a freer hand on economic
regulation, it took up the challenges presented by social and
political upheaval following World War 11, such as free speech and
racial integration. Only recently has the number of civil
liberties cases in the Court’s docket begun to shrink, perhaps as
a reaction to the conservative majority appointed by Presidents
Reagan and Bush.

The Supreme Court in

The Supreme Court hears oral arguments
beginning at ten in the morning, with each attorney typically
allocated a half-hour. Justices are permitted to interrupt attorneys
to ask questions at any time, and the clock is not stopped no matter
how long the question. Attorneys are not allowed to read but may use
notes. Lights indicate how much time is left-a white one signaling
five minutes and a red light notifying attorneys to stop. The
proceedings are taped but are not aired on radio or

The justices meet in secret conference to
discuss and vote on cases. No one is permitted in the room. The
associate justice with the least seniority has the responsibility of
running errands to obtain books or answering knocks at the door. The
conference by tradition commences with a handshake. The chief justice
speaks first on cases and is followed by justices in order of
seniority; votes are taken in reverse sequence on the assumption that
junior members may be intirriddated if voting last. During the tenure
of Chief Justice Burger, a pattern began in which formal votes were
often not taken and the chief interpreted the outcome of the case. If
in the majority, the chief justice assigns the writing of the
opinion; if in the minority, the associate justice with the most
seniority has the duty of assigning the writing of the Court’s
opinion. The opinion is circulated in draft form to the other
justices who may suggest changes, even on the threat of changing
their vote. It sometimes happens that what began as a majority
opinion may lose enough support to end up as a dissenting opinion. A
justice is permitted to change his or her vote until a judgment is
announced in open session.

The entire Court is not required to be present
to vote on a case. A quorum exists so long as six justices are
participating. In a tie vote, the decision of the last court to hear
the case prevails but it does not mean that the justices are
expressing agreement with the ruling; the vote of each justice is not
publicly revealed in such situations.

The recent trend on the Supreme Court is
greater fragmentation in voting. Far fewer decisions are decided
unanimously, declining from close to 90 percent in the nineteenth
century to 38.7 percent in 1995. justices are more willing to
articulate their own views and are producing a higher rate of both
concurring and dissenting opinions. Concurring
opinions are important in establishing whether the Court’s decision
is creating precedent. “Occasionally,” Lawrence Baum explains,
“because of disagreement about the rationale, no opinion gains the
support of a majority of judges; in this situation, there is a
decision but no authoritative interpretation of the legal issues in
the case.”


The Power of the Federal

Courts play a large role in public policy in
the United States. The Supreme Court’s chief weapon in the
constitutional system of checks and balances is judicial review,
the power to declare laws of Congress and acts of the executive
branch unconstitutional and therefore void. There are two competing
views of how judicial review should be exercised. The strict
constructionist approach
holds that judges should confine
themselves to applying those rules that are stated in or clearly
implied by the language of the Constitution. The activist
argues that judges should discover the general
principles underlying the Constitution and amplify those principles
on the basis of some moral or economic philosophy. Today judicial
activists tend to be liberals, and strict constructionists tend to be
conservatives, but fifty years ago just the opposite was the

The Founders would be surprised to find the
courts so activist. They believed that judges should find and apply
existing law, not make new law. Alexander Hamilton wrote in
Federalist No. 78 that “liberty can have nothing to fear
from the judiciary alone,” because the courts have neither the power
of the purse (which Congress has) nor the use of the military (since
the president is commander-in-chief).

To use the courts to influence public policy,
one has to get to court. To do this requires resources and it
requires standing. The average citizen has no chance of
paying the high costs necessary to take a case all the way to the
Supreme Court. However, there are numerous ways in which plaintiffs
who are of average or even low income can have their interests
represented in court. First, indigent persons can file petitions in
forma pauperis and be heard for nothing. The Gideon
case was an example. A variety of interest groups (such as the
ACLU or the NAACP) will take cases that promote their purposes. State
and local governments often raise important issues, and they have
their own attorneys. Although the traditional practice in American
courts is that parties to a lawsuit pay their own legal expenses,
Congress increasingly has been passing laws that allow individuals to
sue government and corporations and have their legal fees paid by the
defendant. Finally, class-action suits allow a plaintiff to
sue someone, not merely on his or her own behalf, but on behalf of
all persons in similar circumstances. Some cases of this sort are not
profitable to bring: The NAACP got no money for winning the Brown
case. However, when money damages can be won on behalf of a
large group of people, lawyers can reap huge rewards, so lawyers
willing to take on such cases are readily found. The Supreme Court
has restricted class-action suits since 1974.

The concept of standing is not a
constitutional requirement. It was created by judicial interpretation
of a provision in Article III that restricts federal courts to “cases
and controversies.” The problem is defining what constitutes a “case”
or a “controversy.” According to Chief justice Warren, “those words
limit the business of the federal courts to questions presented in an
adversary context and in a form historically viewed as capable of
resolution through the judicial process.” Standing is the
term used to embody these principles. As currently construed by the
Supreme Court, it means a court will decline to hear a case unless
the complaining party (plaintiff) proves that a genuine conflict
exists between the parties and that he or she has suffered a personal
injury to a legally protected right. In other words, federal courts
will not hear hypothetical issues. A conflict must be genuine.
Moreover, the injury must be a personal one, not a remote injury.
However, since standing is largely a product of judicial invention,
it is sometimes ignored when a situation warrants settlement by a
court. For example, every abortion case would technically be moot
because the pregnancy would long be over by the time an appeal
reached the Supreme Court; the doctrine of standing has been relaxed
in these appeals on the ground that the issue was “capable of
repetition yet evading review.”

Another traditional barrier to the citizen’s
right to sue is the doctrine of sovereign immunity, which
refuses standing to citizens seeking to bring suit against the
government for damages. “The doctrine of government immunity,” Harold
Grilliot has written, “. . . originated from the English notion that
‘the king can do no wrong.'” This restriction has been eased in two
ways. On the one hand, Congress has waived federal immunity from
certain lawsuits, including most claims involving torts (since 1946)
and contract violations (since 1855). On the other hand, federal
officials are not protected by sovereign immunity for conduct that
exceeds their lawful authority. In addition, the Eleventh Amendment
prevents a state from being sued in federal court without its

Once a case is taken by a federal court, the
outcome can exert profound influence over public policy. Federal
judges have at least four avenues for making policy decisions. First,
a congressional statute or presidential action can be ruled
unconstitutional. The Supreme Court has voided over 120 federal laws
under its power of judicial review. Second, national policy can be
changed whenever the Supreme Court opts to decide an issue
differently. The doctrine of stare decisis, or the practice
of following precedent, is not inflexible and can be repudiated
whenever justice demands a break with prior decisions. As justice
Frankfurter eloquently put it, “Wisdom too often never comes, and so
one ought not to reject it merely because it comes late.” Third, the
Supreme Court has become less likely to leave certain questions (such
as apportionment and contraception) to other branches by declaring
them political questions and therefore not proper subjects
for judicial resolution. The result has been to place the federal
judiciary in the midst of numerous controversial disputes. And
fourth, judges retain a great deal of power in fashioning
remedies, sometimes to the point of micromanaging what is
needed to accomplish justice. For example, federal judge Frank
Johnson, in correcting conditions at an Alabama mental health
institution, went so far as to require that toilets must be “free of
odor” and that each patient must have a .comfortable bed.”

Those who favor judicial activism point to
outcomes of which they approve and say that courts provide
representation to the poor and powerless. Opponents say that courts
have no special expertise in managing complex institutions and have
difficulty balancing competing interests in complex cases. Further,
if judges make (rather than merely interpret) law, they become
unelected legislators, contrary to the intent of the

The reasons for judicial activism are many. It
is not the case that the courts are powerful because we have so many
lawyers. America had more lawyers per capita in 1900, when the courts
played a more limited role. Due to class-action and
Section 1983 suits, it has become easier for persons to get
into court. Increasingly, Congress has passed vague laws that require
bureaucratic interpretation. Laws outlaw discrimination or require
that agencies operate in the public interest without defining either.
Parties adversely affected by decisions under vague laws challenge
them in court. If courts once existed solely to settle disputes,
today they also exist, in the eyes of their members, to solve
problems. Finally, courts have become more powerful as government in
general has become more powerful.

There are checks on judicial power. A judge has
no police force or army, and a person can disobey if the act is not
highly visible and if he is willing to risk being charged with
contempt of court. The Senate must approve judicial nominees, and
Congress has the power to impeach federal judges. Neither of these
powers amounts to much, because simple policy disagreements are not
considered sufficient to warrant the exercise of either of these
prerogatives. Congress can change the number of judges either on the
Supreme Court or in the lower federal judiciary. Congress and the
states can amend the Constitution. Congress can alter the
jurisdiction of the federal courts and prevent them from hearing
certain kinds of cases. All of these checks have their limits.
Amending the Constitution is difficult. Attempts to change the size
of the Court, like the Roosevelt court-packing plan, are likely to
run into opposition from a public that still accords considerable
prestige to the Court. The Supreme Court might rule attempts to limit
the jurisdiction of the courts unconstitutional. Presidential
attempts to produce a less activist Supreme Court have largely

Executive Privilege

Although executive privilege-the right of a
president to claim confidentiality in communications with principal
advisers-was always viewed with some disfavor by the Congress, it was
not directly challenged until 1973. In that year, a congressional
investigation of the Watergate break-in led a special investigator to
request tape recordings of Oval Office conversations. President Nixon
refused to comply with this subpoena, citing executive privilege. The
federal district court, although viewing the tapes as presumptively
within the realm of executive privilege, nonetheless concluded that
the arguments of the special prosecutor were sufficient to rebut such
a position. The case, U.S. v. Mxon (418 U.S. 683
[19741), was then taken to the Supreme Court.

The Court ruled, by a vote of 8-0, that
executive privilege did not protect the president in this instance.
The crucial passages of the opinion follow.

[N]either the doctrine of
separation of powers, nor the need for confidentiality of
highlevel communications … can sustain an absolute, unqualified
Presidential privilege of immunity from judicial process under all
circumstances. The President’s need for complete candor and
objectivity from advisers calls for great deference from the
courts. However, when the privilege depends solely on the broad,
undifferentiated claim of public interest in the confidentiality
of such conversations, a confrontation with other values arises.
Absent a claim of need to protect military, diplomatic, or
sensitive national security secrets, we find it difficult to
accept the argument that even the very important interest in
confidentiality of Presidential communications is significantly
diminished by production of such material for in ca?nera

We conclude then when the ground for
asserting privilege as to subpoenaed materials sought for use in a
criminal trial is based only on the generalized interest in
confidentiality, it cannot prevail over the fundamental demands of
due process of law in the fair administration of criminal justice.

The generalized assertion of privilege must yield to the
demonstrated, specific need for evidence in a pending criminal
trial. (pp. 706, 713)

Nixon did surrender the tapes, which ultimately
provided evidence of his knowledge of the Watergate break-in. In
1975, the House voted for his impeachment; Nixon subsequently
resigned rather than face a Senate hearing.