New problems awaited the court.

Despite worsening relations, those who say American politics is gritlocket are not looking in the right imageplaces. Perhaps the most unique contribution the people of the United States have made to political science and public law is the doctrine of judicial supremacy, as enunciated particularly by the Federal Supreme Court. It is really a better constitutional history than several we have seen formally purporting to be such, the more realistic view that the Constitution of this country is what the Supreme Court chooses to make it,-that all the other processes of its development and growth, such as amendment, statutes, administrative rulings and usage, are finally subject to judicial interpretation.

After all, it is important to know that the Constitution clearly places the Supreme Court at the head of the federal judicial system in America.

The Court has maintained that it has the power to declare acts of Congress and acts of the state legislatures null and void from the time of their adoption, and that it has the power o give a “reasonable interpretation” to the meaning of all legislative acts.

Article III of the Constitution establishes the federal judiciary. Article III, Section I states that “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.”

Although the Constitution establishes the Supreme Court, it permits Congress to decide how to organize it. Congress first exercised this power in the Judiciary Act of 1789. Over the years, various Acts of Congress have altered the number of seats on the Supreme Court, from a low of five to a high of 10. Shortly after the Civil War, the number of seats on the Court was fixed at nine.

In this book review … Haines frankly admits and makes clear, the Court’s insignificance in the first years under the Constitution. The glaring weaknesses in the reasoning of Marbury v. Madison are well indicated, together with its character of “deliberate partisan coup”. Haines opines: “The fact of the matter is that judicial review of legislation was adopted as a practical device to meet a particular situation by shrewd men of affairs who knew what they wanted and who seldom expressed clearly the reasons which prompted their conclusions. Furthermore, the arguments for judicial review were based upon principles of political faith and inner motives of conduct which were seldom made articulate when American political and legal institutions were in the process of formation.”

Justices with political experience would benefit the Court and its judgments; the Court as a necessarily political but not partisan institution. There ought to be some sense of some stability. It’s a high priority to keep any kind of partisan divide out of the judiciary as well. These restrictions are meant to protect the independence of the judiciary from the political branches of government.

The change in scope of judicial review since the Civil War, can be summed up in two sentences from Professor Haines: “New problems awaited the court. * * * The court slowly became involved in the determination of business and economic policies” The features here are the 14th Amendment and the expansion of the meaning of “due process” and “equal protection,”” contraction of the police power of the states, as well as the development of the principle of reasonableness and the triumph of Justice Field’s constitutional theories.

New problems awaited the court in regard to degrees of judicial control in the years that lie ahead. That anxiety also arises today from the growing difficulty in attracting leading members of the Bar, the traditional recruiting ground for judicial appointments, to accept appointment, and the likelihood of appointments from outside the Bar.

In a short but punchy speech to a luncheon held Friday during the 2015 ABA Annual Meeting in Chicago, retired U.S. Supreme Court Justice John Paul Stevens praised the current justices for taking positive steps in the direction of implementing at least some of his recommendations.

The high court’s decision upholding the right of voters to strip legislators of their authority to draw up district voting lines and its ruling that same-sex marriage is protected by the Constitution both were in accord with Justice Stevens’ ideas on how the Constitution can be improved. Justice Stevens cited the majority opinion that Roberts wrote in King v. Burwell, the second major decision in the past two terms that upheld key portions of the Affordable Care Act.

The issue in King vs. Burwell was a legal phrase that seemed to indicate that only people who bought their insurance through a state exchange, not a federal exchange, would be eligible for the tax subsidy. The key phrase was “an exchange established by the State.” The desired outcome was largely split along political lines. Justice Roberts’ decision was stronger than finding an ambiguity.

His interpretation directly validated the federal exchange and the federal tax subsidies. “If the phrase was ambiguous, then the Internal Revenue Service, a federal government agency subject to control by the political party in power, could resolve the ambiguity.”While Justice Scalia agreed that context matters, he said that did not give the majority the authority to rewrite the law.

Members of Congress take an oath to uphold the Constitution, but when there is a dispute over the constitutionality of a law, only the Supreme Court decides whether or not a law is constitutional and what the Law say and what that laws mean, and the Supreme Court gets the final word.

As Chief Justice John Marshall wrote in Marbury v Madison, the landmark of all landmark cases from 1803, “it is emphatically the province and duty of the judicial department to say what the law is.” The landmark decision in which the Court formed the basis for the exercise of judicial review in the United States under Article III of the Constitution, helped define the boundary between the constitutionally separate executive and judicial branches of the American form of government.

When Thomas Jefferson was inaugurated as president in 1801, he named Madison to be his secretary of state. At the start of his term, Madison was a party to the United States Supreme Court case Marbury v. Madison (1803), in which the doctrine of judicial review was asserted by the high Court, much to the annoyance of the Jeffersonians who did not want a powerful federalist judiciary. The main challenge to the Jefferson Administration was maintaining neutrality during the Napoleonic Wars.

The concept of judicial review was discussed in The (first of sex) Federalist Papers.

Alexander Hamilton asserted in Federalist No. 78: It argues that the federal courts have the duty to determine whether acts of Congress are constitutional, and to follow the Constitution when there is inconsistency. And that under the Constitution, the federal courts would have not just the power, but the duty, to examine the constitutionality of statutes:

After the constitution had been drafted, Madison became one of the leaders in the movement to ratify it. His collaboration with Alexander Hamilton and John Jay produced The Federalist Papers (1788) considered among the most important treatises in support of the Constitution.

The American Fathers are proved also to have been in favor of the Judicial Power, when American “political and legal institutions were in the process of formation.”

The unique position of the Supreme Court stems, in large part, from the deep commitment of the American people to the Rule of Law and to constitutional government. The United States has demonstrated an unprecedented determination to preserve and protect its written Constitution, thereby providing the American “experiment in democracy” with the oldest written Constitution still in force.

In 2014, retired U.S. Supreme Court Justice John Paul Stevens published Six Amendments: How and Why We Should Change the Constitution. In his remarks Mr Stevens described the Supreme Court’s ruling in favor of same-sex marriage as the most important decision of the 2015 term. The “right to marry, like the right to abortion, fits squarely with the liberties protected by the due process clause of the 14th Amendment,” said Justice Stevens who made his remarks during the International Human Rights Award & Passing of the Gavel Luncheon sponsored by the Section of Litigation.

In the nearly half century since the close of the Warren Court era, there have been important shifts in the Court’s decisions, many of then in a more conservative direction. In the same time period, there have been important changes in the Court itself — who the justices are, how they do their business, how they relate to the country at large. One should recognize the symbolism of a more racially and ethnically diverse Court has become.

This article (The Changing Face of the Supreme Court A. E. Dick Howard University of Virginia School of Law) is about those changes.

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