supreme court building

The Supreme Court Building in Washington, D.C.

The Supreme Court of the United States is at the center of our federal government’s judicial branch.  Designated by Congress to have nine members, the men and women of the Court have furnished decisions that have become a vital part of American history.  Ever since the Court granted itself the power of judicial review through its decision in Marbury v. Madison in 1803, a simple majority of five members of the Court can be the final word on the constitutionality of both federal and state laws, as well as executive actions.

The Court’s power has long been the subject of passionate debate.  The Constitutional Framers were very concerned about one branch of the federal government having too much power over the others.  They went to great lengths with the checks and balances placed in the Constitution to make sure no one body or individual became the source of absolute power.  They gave Congress the power to create the size of the Supreme Court and establish the lower federal court system.  They also gave Congress the power to regulate all federal courts’ original and appellate jurisdiction, with specific exceptions stated.

A good understanding of the view the Framers took regarding the role of the judiciary comes from Alexander Hamilton, who wrote in Federalist 78 the following:  “Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them…”

By granting itself the power of judicial review, the Court forever changed the judiciary’s role in our republic.  It is a power not expressly granted in Article III of the Constitution. However, there appears to be some consensus that judicial review is at least an implied power in the Constitution.  Some scholars believe it was deliberately left out of the Constitution because it was assumed to be a power of the federal judiciary. Thus, it was unnecessary to enumerate it.  Others believe the Framers did not contemplate the issue during the drafting of the Constitution.

The opposing position is that the Framers did not include judicial review in the Constitution because they never intended it to be a power of the federal judiciary.  The Court was only to decide on criminal and civil cases, not the constitutionality of laws.  In fact, upon hearing about the Marbury decision, Thomas Jefferson feared it “would make the judiciary a despotic branch.”

However one feels about the merits or deficiencies of judicial review, the historical evidence suggests the Framers had no intention of allowing five unelected lawyers the power to decide wide-ranging and important social, economic, and political questions outside the other branches of government.  However, this is arguably what has happened.  The Supreme Court can grant itself the power to hear certain cases if specific criteria are met and rule on them with little recourse from the elected branches.

Regardless of how the power came to be, judicial review is a part of the American system. How has the Court used this power over the years?  One example is shown through the Court’s treatment of segregation.

After the Civil War and the end of slavery, many Southern states segregated services such as public transportation and schools, among others, along racial lines.  But what many Americans might not know is that the Supreme Court was in a position to end racial segregation. It did not.  On May 18, 1896, eight members of the Court established a policy known as “separate but equal” through its decision in Plessy v. Ferguson that allowed for separate public facilities based on race. This was the Court’s decision even though the Equal Protection Clause of the 14th Amendment to the Constitution was ratified in 1868.

Only Justice John Marshall Harlan, a former slave owner, dissented from the opinion.  His dissent exemplifies the sometimes elegant rhetoric Supreme Court justices have authored. He wrote in part:

“In view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.  There is no caste here.  Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.  In respect of civil rights, all citizens are equal before the law.  The humblest is the peer of the most powerful.  The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved…”

It wasn’t until May 17, 1954, that the Court revisited the “separate but equal” doctrine. Through its decision in Brown v. Board of Education, the Court ended segregation of public schools.  Chief Justice Earl Warren wrote:  “To separate them [black children] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely to be undone.”  The Court declared, “We conclude that in the field of public education, the doctrine of ‘separate by equal’ has no place.”  Although the decision only applied to schools, the Court would eliminate segregation in other areas of life in subsequent rulings.

The Current Justices of the Supreme Court as of 2024:

Chief Justice John Roberts – Appointed by President George W. Bush in 2005

Associate Justice Clarence Thomas – Appointed by President George H.W. Bush in 1991

Associate Justice Samuel Alito – Appointed by President George W. Bush in 2006

Associate Justice Sonia Sotomayor – Appointed by President Barak Obama in 2009

Associate Justice Elena Kagan – Appointed by President Barak Obama in 2010

Associate Justice Neil Gorsuch – Appointed by President Donald Trump in 2017

Associate Justice Brett Kavanaugh – Appointed by President Donald Trump in 2018

Associate Justice Amy Coney Barrett – Appointed by President Donald Trump in 2020

Associate Justice Ketanji Brown Jackson – Appointed by President Joe Biden in 2022

As in any other area of life, judges were not created equal.  Americans can only hope that those appointed to the Supreme Court and the lower federal courts with lifetime tenure will respect, rather than abuse, the power they have been given.  Our country and our freedoms deserve nothing less.

Americans should read Supreme Court decisions for themselves. Here is a link to some of the cases mentioned:

Marbury v. Madison

Plessy v. Ferguson

Brown v. Board of Education

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