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date: 21 July 2017

Supreme Court of the United States

The Oxford Companion to Comparative Politics
Lee EpsteinLee Epstein, Thomas G. WalkerThomas G. Walker

Supreme Court of the United States 

The US Supreme Court sits at the apex of the judicial system in the United States. As such, it wields considerable authority, but it also faces substantial constraints on the exercise of its power. We describe both.

Foundations of the Supreme Court's Power: Article III, the Judiciary Act of 1789, and Judicial Review.

Relative to Article I (dealing with the legislature) and Article II (centering on the executive) of the US Constitution, Article III is short. Reflecting the Framers’ agreement on the need for judicial independence, the Constitution blocks Congress from reducing a federal judge's compensation during terms of continuous service. It also allows judges to “hold their offices during good behaviour”—that is, it gives them life tenure—rather than subjecting them to periodic public checks through the electoral process. This choice was relatively uncontroversial at the time of the founding, but in modern times it has come under fire. Some commentators suggest that the United States should follow many European countries and amend the Constitution to provide for a single, nonrenewable term.

The Framers may have concurred on the importance of judicial independence, but they had many debates over the structure of the American legal system. One centered on the appointment of federal judges. After considering several selection systems, they finally decided that the appointment power should be given to the president, with the “advice and consent” of the Senate. Accordingly, the power to appoint federal judges is located in Article II. The Senate, however, takes the advice and consent phrase to mean that it must approve presidential nominees by a majority vote. And it has taken its part in the process quite seriously, failing to confirm 22 of the 160 nominations to the Supreme Court over the past two centuries—a greater number (proportionately speaking) than any other group of presidential appointees requiring senatorial approval.

A second debate centered on the structure of the federal judiciary. The Framers agreed that there would be at least one federal court, the Supreme Court of the United States, but disagreed over whether the Constitution should establish federal tribunals inferior to the Supreme Court. Ultimately, they compromised. Article III creates “one supreme court,” but it does not establish a system of lower federal courts; rather, it gives Congress the option of doing so.

The first Congress took full advantage of this authority when it passed the Judiciary Act of 1789. This is a complex law that, at its core, had two purposes. First, it sought to establish a federal court structure, which it accomplished by providing for the Supreme Court and circuit and district courts. Under the law, the Supreme Court was to have one chief justice and five associate justices. That the court initially had six members illustrates an important point: Congress, not the US Constitution, determines the number of justices on the Supreme Court. It has been fixed at nine since 1869.

A second goal of the Judiciary Act was to specify the jurisdiction of the federal courts. Article III outlines the authority of federal courts, potentially giving them jurisdiction over cases involving particular parties or subjects or, in the case of the Supreme Court, original and appellate jurisdiction. The Judiciary Act provided more specific information, defining the parameters of authority for each of the newly established courts, including the Supreme Court. Section 25, for example, authorized the Supreme Court to hear appeals from the highest state courts if those tribunals upheld a state law against claims that the law violated the Constitution or denied a claim based on the US Constitution, federal laws, or treaties.

The 1789 act paved the way for three landmark constitutional cases—Marbury v. Madison (1803), Martin v. Hunter's Lessee (1816), and Cohens v. Virginia (1821), all of which centered on judicial review—the power of courts to review acts of government for their compatibility with the Constitution. This is now a major power of the US Supreme Court and, in fact, of the entire federal judiciary. (Unlike many countries in Europe, all federal courts enjoy the power of judicial review, not solely a centralized constitutional court.)

Although some evidence exists that the Framers intended for courts to have judicial review power, it is not mentioned in the Constitution. In 1803, in the landmark case of Marbury, however, the court invoked it to strike down legislation the justices deemed incompatible with the US Constitution. In Chief Justice John Marshall's view, such authority, while not explicit in the Constitution, was clearly intended by the Framers of that document. Was he correct? His opinion makes a plausible argument; but some judges and scholars have suggested otherwise, and debates continue. Suffice it to note here that after World War II and, later, the fall of the Soviet Union, many countries wrote judicial review into their constitutions, refusing to leave its establishment to chance.

In Martin and Cohens the state of Virginia challenged the court's authority to review state court decisions. When the justices upheld Section 25 of the Judiciary Act, they reinforced the court's power to review certain decisions of state courts. But neither Martin nor Cohens fully resolved questions concerning the role of federal courts vis-à-vis their state counterparts, nor did they end state challenges to the court's authority to “interfere” In their business. In the wake of the court's historic decision in Brown v. Board of Education (1954), which prohibited segregated public schools, the states developed a variety of strategies to stall Brown's implementation.

The reactions to Brown were extreme; the typical Supreme Court decision—even one that overrules a state law—does not elicit such blatant defiance. In fact, the court's role as a principal interpreter of the Constitution, although not always the final one, is now so firmly established that it can precipitate the resignation of a president, as it did in United States v. Nixon (1974); or the election of a president, as it did in Bush v. Gore (2000); or validate the centerpiece of a president's domestic agenda, as it did in affirming the constitutionality of the Affordable Care Act. With the stroke of a pen, it can declare hundreds of federal statutory provisions unconstitutional, as it did in Immigration and Naturalization Service v. Chadha (1983), or invalidate almost every law in the country regulating abortion, as it did in Roe v. Wade (1973).

But what these and other momentous decisions did not do, and perhaps could not do, was put an end to the controversies surrounding judicial review. One of the most heated centers on what legal scholars call the “countermajoritarian difficulty”: given the United States’ fundamental commitment to a representative form of government, why should it allow a group of unelected officials to override the wishes of the people, as expressed by their elected officials?

Constraints on Judicial Power.

Article III—or the court's interpretation of it—places three major constraints on the ability of federal tribunals to hear and decide cases:

  1. (1) courts must have authority to hear a case (jurisdiction);

  2. (2) the case must be appropriate for judicial resolution (justiciability); and

  3. (3) the appropriate party must bring the case (standing).

The Supreme Court has developed doctrines surrounding each, but there has been some variation over time. In some eras (or cases), the court has favored loose construction of the rules; in others, the justices seem more anxious to enforce them. The variation has raised questions over the extent to which these limits, in fact, constrain the court's authority.

In other ways too the rules may be more fluid than they seem. Consider the prohibition against advisory opinions. Quite early on, the justices held that requests for advisory opinions present nonjusticiable disputes. But this does not mean that justices never give advice. Some have offered political leaders informal suggestions in private conversations or correspondence. They also have given advice in an institutional but indirect manner. Justice Willis Van Devanter largely drafted the Judiciary Act of 1925, which granted the court wide discretion in controlling its docket. Chief Justice William Howard Taft and several associate justices openly lobbied for its passage. In 1937, when the Senate was considering President Franklin D. Roosevelt's plan to add justices to the court in an effort to pack it with his supporters, opponents arranged for the chief justice to send a letter to the Senate, advising that increasing the number of justices would impede rather than facilitate the court's work. It has now become customary for chief justices to prepare an annual report on the state of the judiciary for Congress. In their reports, chief justices occasionally explain not only what kind of legislation they believe is good for the courts but also the likely impact of proposed legislation on the federal judicial system.

Finally, justices have occasionally used their opinions to provide advice to decision-makers. In the seminal case of Regents of the University of California v. Bakke (1978) the court held that a state medical school's version of affirmative action had deprived a white applicant of equal protection of the laws by rejecting him in favor of minority applicants whom the school ranked lower on all the relevant academic criteria. But Justice Lewis Powell's opinion announcing the judgment of the court proffered advice that the kind of affirmative action program operated by Harvard University would be constitutionally acceptable.

The jurisdiction, justiciability, and standing requirements largely come from the court's own interpretation of Article III and its view of the proper role of the judiciary; in other words, the constraints are, to some extent, self-imposed. It would be a mistake, however, to conclude that the use of judicial power is limited only by self-imposed constraints. Indeed, scholars have argued that when it comes to making decisions, the justices are restrained in another way: if they want to generate enduring policy, they must be attentive to the preferences of the elected institutions and the actions they expect them to take.

This claim flows from the logic of the framework underlying the US Constitution—the separation-of-powers/checks-and-balances system. That system and the informal rules that have evolved over time (such as the power of judicial review) endow each branch of government with significant powers and authority over its sphere. At the same time, they provide explicit checks on the exercise of those powers such that each branch can impose limits on the primary functions of the others. So, for example, the judiciary may interpret a law, but Congress can pass new legislation, which the president may sign or veto, to counter the court's interpretation.

In constitutional cases too the other branches of government have the power to alter policy established by the court. For example, Congress can propose constitutional amendments to overturn court decisions. This constraint on the court is especially effective because, once an amendment is part of the Constitution, it is “constitutional” and the justices are bound by it. But the Constitution permits Congress to “punish” the justices in other ways, such as holding judicial salaries constant, impeaching them, changing the size of the court, and making “exceptions” to the court's appellate jurisdiction.

To be sure, the US Congress does not often make use of these various weapons. Only four times in American history has it succeeded in overriding the court with a constitutional amendment. Nonetheless, because Congress has, in the past, overridden the court, there is no reason for justices to believe that the legislature would not do so in the future. More generally, the mere existence of these congressional weapons may serve to constrain the justices from acting on their preferences.

Finally, government actors can refuse, implicitly or explicitly, to implement particular constitutional decisions, thereby decreasing the court's ability to create efficacious policy. Immigration and Naturalization Service v. Chadha (1983) provides a case in point. Theoretically speaking, Chadha nullified on constitutional grounds the practice of legislative vetoes, that is, congressional rejection of policies produced by executive agencies. In practice, however, Congress has passed hundreds of new laws containing legislative vetoes since Chadha, and agencies continue to pay heed when Congress rejects their policies. The problem, so it seems, was that the court fashioned a rule that was “unacceptable” to the other branches of government and, as a result, one that has been “eroded by open defiance and subtle evasion” (Fisher 1993, p. 288). Why the court would establish such an inefficacious rule is open to speculation, but the relevant point is simple enough: once the court reached its decision, it had to depend on Congress to implement it. Because Congress failed to do so, the court was unable to set long-term policy.

[See also Congress, US; Judicial Review; and United States.]


Brown v. Board of Education, 347 US 483 (1954).Find this resource:

Bush v. Gore, 531 US 98 (2000).Find this resource:

Cohens v. Com. of Virginia, 19 US 264 (1821).Find this resource:

Eskridge, William N., Jr. “Reneging on History?” California Law Review 79 (1991): 613–684.Find this resource:

Fisher, Louis. “The Legislative Veto: Invalidated, It Survives.” Law and Contemporary Problems 56 (1993): 273–293.Find this resource:

Immigration and Naturalization Service v. Chadha, 462 US 919 (1983).Find this resource:

Marbury v. Madison, 5 US 137 (1803).Find this resource:

Martin v. Hunter's Lessee, 14 US 304 (1816).Find this resource:

Regents of the University of California v. Bakke, 438 US 265 (1978).Find this resource:

Roe v. Wade, 410 US 113 (1973).Find this resource:

United States v. Nixon, 418 US 683 (1974).Find this resource:

Lee Epstein and Thomas G. Walker

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