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 time.

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 economic 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 Action

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 television.

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 interested in 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 Judiciary

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
approach 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 case.

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
consent.

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 Constitution.

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 failed.

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 high level 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
inspection….

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.