The United States Supreme Court

A political and legal analysis, second edition

Robert J. McKeever

• Publisher: Manchester University Press
• Year: 2016
• ISBN:
  9781526108562
• Edition: 1
• Topic: Politica e relazioni internazionali
• Subtopic: Governo americano

The US Supreme Court is arguably the most controversial institution in the American political system. Decisions on such 'hot-button' issues as abortion, race equality, the death penalty and gay marriage have sharply divided the Court, politicians and public opinion. Some say that the Justices are merely politicians in judicial robes, while others insist that the Court simply does its best to interpret the Constitution for a society that differs drastically from the late eighteenth century when it was written. All those studying or simply interested in American politics must therefore get to grips with the nature, power and role of the Supreme Court in American politics.This book provides a comprehensive and balanced account, written and organised in an accessible style. It assumes no prior knowledge of the Court or constitutional law, and will help readers to gain a full appreciation of this much-criticised and important institution.

1

The Court’s contemporary agenda

The United States Supreme Court is an important, exciting and controversial institution. While lawyers and academics fiercely debate how and why the Supreme Court makes its decisions, for most Americans it is the decisions themselves that matter. This is hardly surprising given the fact that the Court often has the last word on the great political controversies of the day. We begin therefore with an examination of the Supreme Court’s contemporary agenda: after a brief overview of the Court’s past agendas, we identify the major questions of public policy coming before the Court today.

Politics and the legal agenda

As early as 1835, Alexis de Tocqueville observed that ‘scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’.¹ Although there is an element of exaggeration here, de Tocqueville had astutely perceived that the controversies that come before the Court are political rather than legal in origin. What turns political issues into judicial questions is the United States Constitution. All laws and government actions must comply with the Constitution, so anyone who has lost the political battle over an issue may yet claim that the Constitution has been violated. And in the United States, it is the courts that resolve constitutional disputes.

De Tocqueville’s observation needs to be qualified, however. Most importantly, the Supreme Court has almost total discretion over which cases it chooses to hear. And while it receives many thousands of petitions for judicial review each year, it accepts only a small percentage – usually 1 or 2 per cent or about seventy-five cases (see Chapter 3). The Court is therefore highly selective about which cases it will hear and not every major political controversy will necessarily end up being resolved by the Justices. However, the Court’s agenda inevitably tracks the nation’s political agenda since political losers on major issues will often seek a constitutional ruling in their favour.

The Founding era

The nation’s political agenda changes over time. In the early decades of the American republic, the most significant political debates revolved around the allocation of powers set out in the Constitution, written in 1787 and formally adopted in 1789. In particular, there was conflict over the issue of federalism, that is, the Constitution’s division of powers between the national government on the one hand and the individual States’ governments on the other. In this era, the Supreme Court also settled important political disagreements over the Constitution’s allocation of powers to Congress, the President and even to the Court itself.

The Slavery era

By the mid nineteenth century, much of the heat had gone out of these issues as the nation gradually came to terms with its new political and constitutional system. However, one issue brought these tensions back to prominence: slavery. Some States wanted to protect slavery and expand it throughout the United States. Other States had banned it and wanted to stop its spread. Moreover, the federal government was responsible for territories that had not yet been organised into States and the question arose as to whether slavery should be permitted in these federal jurisdictions. It was not difficult to reframe these political and economic conflicts as constitutional claims. Pro-slavery Americans saw slaves as private property and cited the Constitution’s protection of property rights. On the other hand, those who opposed slavery cited the Constitution’s protection of liberty and citizenship for slaves who had moved to States where slavery was prohibited. In the case of Dred Scott v. Sandford (1857), the most infamous in the Supreme Court’s history, the Justices voted by a majority of 7–2 to the effect that slaves were property and remained so even if their owners took them to States that banned slavery. The Court’s decision made compromise on the issue of slavery far more difficult and eventually it required the American Civil War (1861–65) to settle the issue once and for all.

The era of economic regulation

After the Civil War, the political agenda changed again, as new issues arose out of the rapid industrialisation that was sweeping the country. From the 1870s to the 1930s, fierce debates and sometimes industrial violence were generated by the rival interests of businessmen and workers. While the former wanted complete freedom to maximise their profits without interference by trade unions or government, workers wanted what they saw as fair wages, reasonable hours of work and health and safety protections. In the first decades of the twentieth century, the federal government and many State governments introduced laws to regulate industry and commerce, particularly after the onset of the Great Depression in 1929.

Businessmen and corporations appealed to the Constitution and the courts to protect what they saw as their economic freedoms. The Supreme Court was often sympathetic to these claims, citing the fact that the Constitution of 1787 did not grant wide regulatory powers to government, whereas it did protect individual liberty. However, in 1932 Franklin D. Roosevelt was elected President on the promise of giving the American people a ‘New Deal’. This involved a vast swathe of federal government schemes and regulation designed to regenerate the economy and provide Americans with a measure of economic security. For several years, the Supreme Court rejected key elements of the New Deal programme. However, when Roosevelt was re-elected in 1936, with large majorities in Congress and overwhelming public support, the political pressure on the Court became immense. In 1937 the Supreme Court effectively gave way. In the case of West Coast Hotel v. Parrish, the Court reversed a decision it had made fifteen years earlier and upheld the constitutionality of a minimum wage law. Although it said nothing explicitly, the Supreme Court was to remove economic regulatory legislation from its agenda for the next sixty years.

The Civil Rights era

However, just as the Court can choose to abandon a major part of its agenda so too it has the freedom to take up a new cause. Just one year after its decision in West Coast Hotel v. Parrish, the Court gave a hint as to the new direction its agenda would take. In US v. Carolene Products (1938), the Court reiterated its view that economic regulation was a matter best left to elected politicians to decide. In a footnote to his written Opinion in the case, however, Justice Harlan Fiske Stone raised the idea that the Court might have a special duty to protect the rights of ‘discrete and insular minorities’. Justice Stone was concerned that certain permanent minorities, such as African-Americans, could not trust the majoritarian democratic process to protect their rights. Majorities sometimes ignored or even despised certain minorities, and elected politicians might be tempted to follow majority prejudice. In such cases, argued Stone, unelected judges, including the Justices of the US Supreme Court, should step in to ensure that even unpopular minorities could enjoy their rights.

This so-called Footnote Four helped transform the Supreme Court from a body seen as a defender of wealth and privilege into a champion of the oppressed and disrespected. African-Americans were the major beneficiaries of this new Supreme Court agenda. Beginning with the school desegregation case of Brown v. Board of Education (1954), the Court led a historic transformation of the inequality and discrimination that had been imposed on African-Americans since the abolition of slavery. Other minorities and disadvantaged groups were also to benefit from the Court’s new agenda. These included Jehovah’s Witnesses, criminal suspects, women, disabled people and political protesters.

The Court gradually fashioned a constitutional philosophy that protected not just unpopular minorities, but also individuals who challenged conventional majoritarian viewpoints. Under the banner of privacy of the individual, the Court created new rights that struck down legislation that had been in place for many years. Most controversially, the case of Roe v. Wade (1973) created a ‘right to abortion’ that allowed women considerable discretion in deciding whether to continue a pregnancy or to terminate it. While many saw this as a positive move in helping to overcome the disadvantages facing women in a male-dominated society, others viewed it as unnatural and immoral. Nevertheless, the Court had decided that the choice over abortion belonged to the individual woman and her doctor, not the majority as expressed through elected politicians.

The liberal twentieth century

Broadly speaking, the twentieth century witnessed the triumph of political liberalism in the United States. First, the Great Depression engendered a demand for national regulation of the economy, the introduction of a welfare state and recognition of the rights of workers. Although this fell far short of European-style socialism, it was a radical break from the American tradition of laissez-faire economics and individualism. The Supreme Court eventually embraced the new liberalism, after decades of resistance.

Following their triumph in economics, liberals proposed a new socio-cultural agenda. Beginning with the cause of ending racial discrimination, liberals challenged many other aspects of traditional culture and practice. Congress passed and Presidents signed landmark civil rights legislation, including the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Civil Rights Act of 1968. The federal government struck a blow for gender equality with the passage of the Equal Pay Act of 1963. In 1964 President Lyndon Johnson launched a ‘War on Poverty’ as part of a goal of creating a ‘Great Society’. Many Republicans went along with these reforms and added their own measures. President Richard Nixon, for example, created the Environmental Protection Agency in 1970 and embraced the idea of ‘affirmative action’ to overcome race inequalities. The Supreme Court not only upheld these liberal policies, it initiated some of its own, including the banning of school prayer (Engel v. Vitale, 1962); requiring States to provide lawyers to defend poor people accused of crimes (Gideon v. Wainwright, 1963); and limited State powers to ban pornography (Stanley v. Georgia, 1969).

In short, the Supreme Court’s agenda in the twentieth century mapped on to the political agenda of the United States as a whole. It is a clear vindication of de Tocqueville’s observation that America’s great political controversies frequently become judicial questions for resolution by the Supreme Court.

What is also evident, however, is that neither the Supreme Court’s role nor its agenda is fixed. The role of the Court in embracing economic liberalism was passive and deferential to majorities and their elected politicians. In contrast, the Court’s role in pursuing socio-cultural liberalism was very active, sometimes radically so.

We can draw two further conclusions from this. First, the Supreme Court is part of the political and governmental fabric of the United States and, as a result, comes under great pressure from events elsewhere in the political system. As we have already noted, losers in the elected branches of government have one last card to play – an appeal on constitutional grounds to the unelected judiciary. This is as true of an industrialist opposed to minimum wage legislation as it is of an African-American being treated unequally to other citizens.

Second, it is important to understand that the Justices of the Supreme Court have a choice as to which appeals they take and, moreover, how they decide the cases they do accept. The cases and decisions of the Supreme Court in any one era will therefore reflect a combination of the major political issues of the day and the role the Justices believe they should play, if any, in resolving those questions.

The era of conservative counter-revolution

The contemporary period of the Supreme Court is characterised above all by a conservative crusade to reverse almost one hundred years of liberal predominance. When exactly this new era began is debatable. As early as 1968 the Republican candidate for the presidency, Richard M. Nixon, attacked the Court for what he saw as its excessive liberal activism. However, the Supreme Court does not change overnight, largely because its Justices are appointed for life and it can take many years to create a new majority.

The year 1986, however, stands out as one in which there was a distinct shift to the right on the Court. For in that year the political leader of the counter-revolution, President Ronald Reagan, was able to appoint William Rehnquist as the Court’s new Chief Justice. Rehnquist had been on the Court as an Associate Justice since 1972. Although he had been the standard-bearer on the Court for a conservative approach to the Court’s role in politics and law, he was often isolated as a liberal-moderate majority continued to dominate.

As the new Chief Justice, Rehnquist symbolised the progress that had been made by the conservative counter-revolution. Equally importantly, a new Associate Justice was also appointed in 1986 – Antonin Scalia. Scalia had established his reputation as a trenchant conservative, wholly committed to the cause of the counter-revolution. Together with the Court’s new leader, Scalia was expected to bring new energy and determination to the conservative cause. Yet the counter-revolution has proved more difficult than many anticipated, and the frustrations felt by conservatives tell us much about the nature of the Supreme Court as a dual body, both political and legal.

Abortion

As we have seen, in Roe v. Wade (1973) the Supreme Court announced the highly controversial ruling that the Constitution gave women the right to choose to terminate a pregnancy by abortion. The decision was surprising and provocative for a number of reasons. First, until this point, abortion had been considered a matter for the individual States to decide for themselves. Founded on the principle of federalism, the United States Constitution reserves many policy areas to the jurisdiction of the individual States, rather than the national government. And although some States had recently liberalised their abortion statutes, the Roe decision went far beyond even these, never mind those State laws that still prohibited abortion in almost all circumstances. These State statutes were based on traditional and religious teachings that still resonated with many Americans.

The Roe decision was also attacked for its arguably weak constitutional underpinnings. The author of the Court’s Opinion, Justice Harry Blackmun, relied on the concept of a constitutional right to privacy. However, no such right is mentioned in the Constitution. That said, Justice Blackmun was able to draw on a number of precedents – previous Court decisions – that invoked notions of privacy under the umbrella of the Due Process clause of the Fourteenth Amendment that protects ‘liberty’. Most important here was the 1965 decision in Griswold v. Connecticut that struck down a State law forbidding the use of contraceptives. For Justice Blackmun, Roe was a logical application of the privacy and personal liberty arguments contained in Griswold. Asserting that the right to privacy was broad enough to include the right to choose an abortion, Blackmun listed the consequences of denying a woman this aspect of her liberty:

The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the stress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.

In short, Blackmun argued that the right to choose an abor...