The History of the Supreme Court

This month, the Senate plans to conduct hearings over whether or not to confirm President Trump’s nominee to serve on the Supreme Court, Amy Coney Barrett. If she is approved, she will be the third Supreme Court justice Trump has appointed. This process of nominating and approving Supreme Court justices is laid out in Article 2, Section 2 of the United States Constitution: “[The president] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”

It may seem odd or surprising to you that the Constitution makes such a passing reference to the appointment of the judges who serve in the highest court in the land. Given the importance of the Supreme Court in American society and politics, it’s downright shocking that Article 3 – the part of the Constitution that deals with the judicial branch – only refers to the Supreme Court by name once: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.”

That’s it! That’s all the mention the Supreme Court gets in the Constitution. Well, unless you count the provision that the Chief Justice should preside when the Senate meets to review the impeachment of the President. So, three mentions in total.

Clearly, the Founding Fathers didn’t consider the Supreme Court to be all that important in their design of the federal government, other than its role in separating the judicial powers from the executive and legislative ones. So, how did the Supreme Court become so important? Why does it have nine justices? And why is every appointment of a Supreme Court justice so politically controversial?

How the Supreme Court gave itself its power

The most important Chief Justice in U.S. history, John Marshall

In the very early days of the United States, the Supreme Court went about its business as just another court. Sure, its decisions couldn’t be appealed to any higher authority (hence, “Supreme Court”), but that was it. Early cases before the Supreme Court were over ordinary matters of law.

Then came the most important Supreme Court case in U.S. history: Marbury v. Madison. This 1803 ruling changed the game for what the Supreme Court’s job is. This excellent video goes into detail about this case, but the nutshelled version goes something like this:

In the last few days of John Adams’s term as President, he was trying to push through as many appointments of his political allies as judges on federal courts as possible. He was making these appointments right down to the wire, to the point that, in those days when the fastest mode of transportation was on horseback, the commissions couldn’t be delivered on time before Thomas Jefferson was inaugurated as President. Jefferson put a stay on many of these commissions and refused to honor them. William Marbury, one of the men who was supposed to get one of these last-minute commissions, sued. Under Section 13 of the Judiciary Act of 1789, it was up to the Supreme Court to rule in this case. However, the court ruled that it actually did NOT have this power, as Section 13 was unconstitutional for expanding the powers of the court beyond what the Constitution allowed.

Ironically, this very precedent significantly expanded the Supreme Court’s power. The court gave itself the authority to be the final arbiter of what is and isn’t compatible with the Constitution, and to invalidate laws that are incompatible. This power has been used by the Supreme Court hundreds of times in all manner of cases. Many of the court’s most famous cases on issues from civil rights to criminal law to freedom of speech to abortion stem from this power.

Why are there nine?

The nine Supreme Court justices in 2010. Image by Steve Petteway.

You’ll notice that in those excerpts from the Constitution regarding the Supreme Court, it never actually specified how many judges it should have. Thus, Congress decided to set the number of Supreme Court justices in the aforementioned Judiciary Act of 1789. Congress determined that they would set the number at six.

Yes, six.

See, the Constitution also gave Congress the authority to created lower federal courts, and in Judiciary Act of 1789, it was decided that each Supreme Court justice should also serve one of six regional “Circuit Courts”, so called because the judge would literally ride around in a circuit through various local courthouses to hear appeals from state courts. Indeed, this was the reason that a seventh Supreme Court justice was added in 1807, to serve a new, seventh circuit covering the new states of Kentucky, Ohio, and Tennessee.

As the United States continued to expand westward and more states were admitted to the Union, the need to add more Circuit Courts grew, and in 1837 an eighth and ninth circuit were added, bringing the total number of Supreme Court justices to nine. A tenth circuit, and tenth Supreme Court justice, was added in 1863.

That’s when politics enters the picture. In 1865, the assassination of Abraham Lincoln elevated the highly controversial Andrew Johnson to the presidency. Congress did not like Andrew Johnson at all, and decided to limit his power by passing a law in 1866 that declared that whenever vacancies occurred on the Supreme Court, the empty seats would not be filled, until the number of the justices on the court reached seven. This law denied Johnson the right to fill any Supreme Court vacancies during his term of office. Sure enough, Justice James Moore Wayne died the very next year, and Johnson could do nothing about it.

In 1869, Ulysses S. Grant became president. Congress was fine with him, so they changed the law again, fixing the number of justices at nine, the number of justices at the time.

By the late 19th and early 20th centuries, the Circuit Courts were phased out, and Supreme Court justices no longer had to travel the country as part of their jobs. Thus, the number of justices remained fixed at nine. Over time, this just became an accepted part of America’s political tradition.

However, there is nothing to stop Congress from adding more Supreme Court justices any time they want, besides respect for a century and a half of tradition. There have occasionally been calls by politicians frustrated by a court that rules against them to “pack the court” by adding more judges. The most famous of these threats came in 1937, when Franklin Delano Roosevelt responded to the Supreme Court ruling several key parts of his New Deal to be unconstitutional by introducing a bill to Congress that would have added as many as six new justices. This bill was opposed by basically everyone; the Supreme Court spoke out against it, the general public opposed it, and Congress refused to even consider it. In the end, Roosevelt was forced to back down. It just goes to show the power tradition has on people’s behavior.

Why is the appointment of Supreme Court justices so controversial?

Actually, it isn’t as controversial as you might think. Sure, whenever a seat on the court falls vacant, Senators will start posturing, grandstanding, saber-rattling, bickering, and arguing over the nominee.

But in the end, the Senate almost always approves the President’s nominee. In fact, of the 163 people that have been named to serve in the Supreme Court since 1789, the Senate has only ever outright rejected 11 people.

So, why all the meaningless noise?

When writing the Constitution, the Founding Fathers wanted to make sure that the federal judiciary would be non-partisan. Partisanship, they feared, would tear the country apart as the nation’s leaders would put the interests of their party before that of the general public as a whole. By making federal judges serve for life, they reasoned, they would not have to worry about partisan interests because they had the ultimate job security, and would therefore rule based on the law.

Ironically, it is that very partisanship that leads to all the drama when the Supreme Court has a vacancy to fill. Because the court has the final say on what laws are constitutional or not, they have immense power. This gives Presidents an incentive to appoint justices that have the same ideology as themselves, as a way to use the court’s power to influence politics long after their term is up. A president’s picks for Supreme Court justices, once approved, are the most lasting legacies of his or her administration.

This also gives Senators from the president’s party an incentive to push the nominee through to approval, and those from the opposing party an incentive to make a big, public stand against this nominee to win political points with their base that they can use when they are up for reelection, even though if the roles were reversed they would do the exact same thing. Again, the Senate has only ever rejected 11 nominees.

Given the average human lifespan, and the constant struggle between Democrats and Republicans over control of Washington, D.C., it makes sense that the court’s political leanings have swung back and forth over the decades. The court that struck down parts of the New Deal in the 1930’s was replaced by the famous Warren Court of the 1950’s and 1960’s (named for Chief Justice Earl Warren) that issued some of the most important progressive rulings in the 20th century, such as Brown v. Board of Education (leading to the end of racial segregation), Gideon v. Wainwright (granting all those accused of a crime the right to a public defender), and Engel v. Vitale (banning school prayer). These rulings and others like them have been justified by the “Living Constitution” doctrine, the idea that the court should be flexible in its interpretation of the Constitution so it can be adapted to modern situations.

In response to these rulings, a backlash among more conservative judges has emerged, known as “Originalism”. This doctrine holds that the Constitution should be interpreted as strictly as possible, and as closely to the original intent of those who wrote the document in the first place as possible. With President Trump having appointed two, and now possibly three, justices to this bench, one can’t help but expect the court to enter a new conservative-leaning Originalist phase, no matter who wins the election next month. Eventually, I’m sure, we will see a new liberal-leaning phase when the political pendulum swings again.

Whoever controls the Supreme Court in the present or future, though, one thing is for certain. Its important role in the U.S. government, established over the last two centuries, will continue to shape the landscape in Washington for generations to come.