The Supreme Court and Constitutional Interpretation

One limitation on American courts, and most conspicuously on the Supreme Court, is that the courts can only get involved in a situation brought to them involving an actual "case or controversy" as the Constitution puts it. The Constitution limits the Court to dealing with "Cases" and "Controversies." John Jay, the first Chief Justice, clarified this restraint early in the Court's history by declining to advise President George Washington on the constitutional implications of a proposed foreign policy decision. The Court does not give advisory opinions; rather, its function is limited only to deciding specific cases.

For the court to hear a case, it must be "justiciable." To be justiciable, someone must be able to show that they are being "hurt" in some way. The case also cannot be "moot," or so the court sometimes argues. This means that the case can't be over or resolved in some way before the court can decide on it. Finally, the court cannot hear a case involving a "political question." This means a case involving a dispute between the "political" branches of government; namely, the branches that are elected. In other words, the Legislature and the Executive. The catch here, though, is that the Supreme Court gets to define when a dispute between the legislative branch and the executive branch is "political." And there is no good definition of what is a "political question."

The Supreme Court is "distinctly American in concept and function," as Chief Justice Charles Evans Hughes observed. Few other courts in the world have the same authority of constitutional interpretation and none have exercised it for as long or with as much influence. A century and a half ago, the French political observer Alexis de Tocqueville noted the unique position of the Supreme Court in the history of nations and of jurisprudence. "The representative system of government has been adopted in several states of Europe," he remarked, "but I am unaware that any nation of the globe has hitherto organized a judicial power in the same manner as the Americans . . . . A more imposing judicial power was never constituted by any people."

The complex role of the Supreme Court in this system derives from its authority to invalidate legislation or executive actions which, in the Court's considered judgment, conflict with the Constitution. This power of "judicial review" has given the Court a crucial responsibility in assuring individual rights, as well as in maintaining a "living Constitution" whose broad provisions are continually applied to complicated new situations.

There is then a way in which the Supreme Court can compensate for the passive posture it must maintain: sometimes it exercises its power of judicial review in which, once it has accepted a case, it can go beyond the mere dispute involved and declare that a law involved in the case is unconstitutional.

While the function of Judicial Review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

Despite this background the Court's power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court's responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. "It is emphatically the province of the judicial department to say what the law is," he declared.

In retrospect, it is evident that constitutional interpretation and application were made necessary by the very nature of the Constitution. The Founding Fathers had wisely worded that document in rather general terms leaving it open to future elaboration to meet changing conditions. As Chief Justice Marshall noted in McCulloch v. Maryland, a constitution that attempted to detail every aspect of its own application "would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind . . . . Its nature, therefore, requires that only its great outlines should be marked, its important objects designated and minor ingredients which compose those objects be deduced from the nature of the objects themselves."

The Justices must exercise considerable discretion in deciding which cases to hear, since more than 6,500 civil and criminal cases are filed in the Supreme Court each year from the various state and federal courts. The Supreme Court also has "original jurisdiction" in a very small number of cases arising out of disputes between states or between a state and the federal government. All other cases that are heard are done so under the "appelate jurisdiction" of the court

When the Supreme Court rules on a constitutional issue that judgment is virtually final; its decisions can be altered only by the rarely used procedure of constitutional amendment or by a new ruling of the Court. However, when the Court interprets a statute, new legislative action can be taken.

Chief Justice Marshall expressed the challenge which the Supreme Court faces in maintaining free government by noting: "We must never forget that it is a constitution we are expounding . . . intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs."

Mechanics of the Court
Rule of Four
amicus curiae briefs
majority opinion
minority opinion
concurring opinion
dissenting opinion
role of law clerks

Judicial Philosophy
Since the federal courts, and especially the Supreme Court, have so much power, the exact manner in which they choose to interpret the constitution is of, well, "supreme" importance. This question has become very controversial in recent years. Although there may be different ways to interpret it, the basic debate over judicial philosophy asks the question, "Should judges and justices strictly interpret the Constitution or should they use the Constitution, at times, as a point of departure to make decisions that bring about change in society?" Yet another question judges must often confront is whether they should adhere to "precedent," that is follow the rule of "stare decisis," which means following earlier opinions on the same subject; or, whether they should overrule previous decisions. Almost always, the preference of the courst is to adhere to stare decisis, which means let the [earlier] decision stand, but occasionally the court will overrun itself, meaning it will decide contrary to previous opinions. The reason the court feels it is important to adhere to stare decisis is because it makes the law predictable and stable, rather than unpredictable and always changing. A stable system of law is the sign of a well run government.

The Court as an Institution

The Constitution elaborated neither the exact powers and prerogatives of the Supreme Court nor the organization of the Judicial Branch as a whole. Thus, it was left to Congress and to the Justices of the Court through their precedents to develop the federal judiciary and a body of federal law.

The establishment of a Federal Judiciary was a high priority for the new government, and the first bill introduced in the United States Senate became the Judiciary Act of 1789. The act divided the country into 13 judicial districts, which were, in turn, organized into three circuits: the Eastern, Middle, and Southern. The Supreme Court, the country's highest judicial tribunal, was to sit in the Nation's Capital, and was initially composed of a Chief Justice and five Associate Justices. For the first 101 years of the Supreme Court's life-but for a brief period in the early 1800's-the Justices were also required to 'ride circuit,' and hold circuit court twice a year in each judicial district.

The Supreme Court first assembled on February 1, 1790, in the Merchants Exchange Building in New York City-then the Nation's Capital. Chief Justice John Jay was, however, forced to postpone the initial meeting of the Court until the next day, due to transportation problems, some of the Justices were not able to reach New York until February 2.

The earliest sessions of the Court were devoted to organizational proceedings. The first cases reached the Supreme Court during its second year, and the Justices handed down their first opinion in 1792.

During its first decade of existence, the Supreme Court rendered some significant decisions and established lasting precedents. However, the first Justices complained of the Court's limited stature; they were also concerned about the burdens of "riding circuit" under primitive travel conditions. Chief Justice John Jay resigned from the Court in 1795 to become Governor of New York State and, despite the pleading of President John Adams, could not be persuaded to accept reappointment as Chief Justice when the post again became vacant in 1800.

Consequently, shortly before being succeeded in the White House by Thomas Jefferson, President Adams appointed John Marshall of Virginia to be the fourth Chief Justice. This appointment was to have a significant and lasting effect on the Court and the country. Chief Justice Marshall's vigorous and able leadership in the formative years of the Court was central to the development of its prominent role in American government. Although his immediate predecessors had served only briefly, Marshall remained on the Court for 34 years and five months and several of his colleagues served for more than twenty years.

Members of the Supreme Court are appointed by the President subject to the approval of the Senate. To ensure an independent judiciary and to protect judges from partisan pressures, the Constitution provides that judges serve during "good Behavior," which has been generally meant life terms. To further assure their independence, the Constitution provides that judges' salaries may not be diminished while they are in office.

The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 16 Chief Justices and 97 Associate Justices, with Justices serving for an average of 15 years. Despite this important institutional continuity, the Court has had periodic infusions of new Justices and new ideas throughout its existence; on average a new Justice joins the Court every 22 months. President Washington appointed the six original Justices and before the end of his second term had appointed four other Justices. During his long tenure, President Franklin D. Roosevelt came close to this record by appointing eight Justices and elevating Justice Harlan Fiske Stone to be Chief Justice.

The Court and Its Traditions

For all of the changes in its history, the Supreme Court has retained so many traditions that it is in many respects the same institution that first met in 1790, prompting one legal historian to call it "the first Court still sitting."

Recent Justices have perpetuated the tradition of longevity of tenure. Justice Hugo Black served for 34 years and one month prior to his retirement in 1971. In October 1973, Justice William O. Douglas surpassed the previous longevity record of Justice Stephen J. Field, who had served for 34 years and six months from 1863 to 1897. When Justice Douglas retired on November 12, 1975, he had served a total of 36 years and six months.

As is customary in American courts, the nine Justices are seated by seniority on the Bench. The Chief Justice occupies the center chair; the senior Associate Justice sits to his right, the second senior to his left, and so on, alternating right and left by seniority.

Since at least 1800, it has been traditional for Justices to wear black robes while in court. Chief Justice Jay, and apparently his colleagues, lent a colorful air to the earlier sessions by wearing robes with a red facing, somewhat like those worn by early colonial and English judges. The Jay robe of black and salmon is now in the possession of the Smithsonian Institution.

Initially, all attorneys wore formal "morning clothes" when appearing before the Court. Senator George Wharton Pepper of Pennsylvania often told friends of the incident he provoked when, as a young lawyer in the 1890's, he arrived to argue a case in "street clothes." Justice Horace Gray was overheard whispering to a colleague, "Who is that beast who dares to come in here with a grey coat?" The young attorney was refused admission until he borrowed a "morning coat." Today, the tradition of formal dress is followed only by Department of Justice and other government lawyers, who serve as advocates for the United States government.

Quill pens have remained part of the Courtroom scene. White quills are placed on counsel tables each day that the Court sits, as was done at the earliest sessions of the Court. The "Conference handshake" has been a tradition since the days of Chief Justice Melville W. Fuller in the late 19th century. When the Justices assemble to go on the Bench each day and at the beginning of the private conferences at which they discuss decisions, each Justice shakes hands with each of the other eight. Chief Justice Fuller instituted the practice as a reminder that difference of opinion on the Court did not preclude overall harmony of purpose.

The Supreme Court has a traditional seal, which is similar to the Great Seal of the United States, but which has a single star beneath the Eagle's claws-symbolizing the Constitution's creation of "one Supreme Court." The Seal of the Supreme Court of the United States is kept in the custody of the Clerk of the Court and is stamped on official papers, such as certificates given to attorneys newly admitted to practice before the Supreme Court. The Seal now used is the fifth in the Court's history.

The Court and Its Procedures

A Term of the Supreme Court begins, by statute, on the first Monday in October. Usually Court sessions continue until late June or early July. The Term is divided between "sittings" when the Justices hear cases and deliver opinions, and intervening "recesses" when they consider the business before the Court and write opinions. Sittings and recesses alternate at approximately two week intervals.

With rare exceptions, each side is allowed thirty minutes argument and generally 22 to 24 cases are argued at one sitting. Since the majority of cases involve the review of a decision of some other court, there is no jury and no witnesses are heard. For each case, the Court has before it a record of prior proceedings and printed briefs containing the arguments of each side.

During the intervening recess period, the Justices study the argued and forthcoming cases and work on their opinions. Each week the Justices must also evaluate more than 110 petitions seeking review of judgments of state and federal courts to determine which cases are to be granted full review with oral arguments by attorneys.

When the Court is sitting, public sessions begin promptly at 10 a.m. and continue until 3 p.m., with a one-hour lunch recess starting at noon. No public sessions are held on Thursdays or Fridays. On Fridays during and preceding argument weeks, the Justices meet to discuss the argued cases and to discuss and vote on petitions for review.

When the Court is in session, the 10 a.m. entrance of the Justices into the Courtroom is announced by the Marshal. Those present, at the sound of the gavel, arise and remain standing until the robed Justices are seated following the traditional chant: "The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"

Prior to hearing oral argument, other business of the Court is transacted. On Monday mornings this includes the release of an Orders List, a public report of Court actions including the acceptance and rejection of cases, and the admission of new members to the Court Bar. Opinions are typically released on Tuesday and wednesday mornings and on the third Monday of each sitting, when the Court takes the Bench but no arguments are heard.

The Court maintains this schedule each Term until all cases ready for submission have been heard and decided. In May and June the Court sits only to announce orders and opinions. The Court recesses at the end of June, but the work of the Justices is unceasing. During the summer they continue to analyze new petitions for review, consider motions and applications, and must make preparations for cases scheduled for fall argument.

The Court Building

"The Republic endures and this is the symbol of its faith." These words, spoken by Chief Justice Charles Evans Hughes, in laying the cornerstone for the Supreme Court Building on October 13, 1932, express the importance of the Supreme Court in the American system.

Yet surprisingly, despite its role as a coequal branch of government, the Supreme Court was not provided with a building of its own until 1935, the 146th year of its existence.

Initially, the Court met in the Merchant's Exchange Building in New York City. When the national capital moved to Philadelphia in 1790, the Court moved with it, establishing Chambers first in Independence Hall and later in the City Hall.

When the federal government moved, in 1800, to the permanent capital, Washington, the District of Columbia, the Court again moved with it. Since no provision had been made for a Supreme Court building, Congress lent the Court space in the new Capitol building. The Court was to change its meeting place a half dozen times within the Capitol. Additionally, the Court convened for a short period in a private house after the British set fire to the Capitol during the War of 1812. Following this episode, the Court returned to the Capitol and met from 1819 to 1860 in a chamber that has been restored as the "Old Supreme Court Chamber." Then from 1860 until 1935, the court sat in what is now known as the "Old Senate Chamber."

Finally in 1929, Chief Justice President William Howard Taft, who had been president of the United States from 1909 to 1913, persuaded Congress to end this arrangement and authorize the construction of a permanent home for the Court. Architect Cass Gilbert was charged by Chief Justice Taft to design "a building of dignity and importance suitable for its use as the permanent home of the Supreme Court of the United States."

Neither Taft nor Gilbert survived to see the Supreme Court Building completed. Construction proceeded under the direction of Chief Justice Hughes and architects Cass Gilbert, Jr. and John R. Rockart. The construction, begun in 1932, was completed in 1935, when the Court was finally able to occupy its own building.

The classical Corinthian architectural style was selected because it best harmonized with nearby congressional buildings. The building was designed on a scale in keeping with the importance and dignity of the Court and the judiciary as a coequal, independent branch of the United States Government, and as a symbol of "the national ideal of justice in the highest sphere of activity."

The general dimensions of the foundation are 385 feet east and west, from front to back, and 304 feet north and south. At its greatest height, the building rises four stories above the terrace or ground floor. Marble was chosen as the principal material to be used and three million dollars' worth was gathered from foreign and domestic quarries. Vermont marble was used for the exterior, while the four inner courtyards are of crystalline flaked, white Georgia marble. Above the basement level, the walls and floors of all corridors and entrance halls are either wholly or partially of creamy Alabama marble. The wood in offices throughout the building such as doors, trim, paneled walls, and some floors is American quartered white oak.

The Court Building cost less than the $9,740,000 Congress authorized for its construction. Not only was the final and complete cost of the building within the appropriation, but all furnishings were also procured, even though it had initially been expected that the project would required additional appropriations. Upon completion of the project, $94,000 was returned to the Treasury.

The raised Bench behind which the Justices sit during sessions, and other furniture in the Courtroom are mahogany. The Bench was altered in 1972 from a straight-line to a "winged" or half-hexagon shape to provide sight and sound advantages over the original design.

At the left of the Bench is the Clerk of the Court's desk. In the Courtroom, the Clerk is responsible for the administration of the Court's dockets and argument calendars the supervision of the admission of attorneys to the Supreme Court Bar. To the right is the desk of the Marshal of the Court. The Marshal is the timekeeper of Court sessions, signalling the lawyer by white and red lights as to time limits. The Marshal's responsibilities include the maintenance and the security of the building and serving as the Court's building manager.

The attorneys arguing cases before the Court occupy the tables in front of the Bench. When it is their turn to argue, they address the Bench from the lectern in the center. A bronze railing divides the public section from that reserved for the Supreme Court Bar.

Representatives of the press are seated in the red benches along the left side of the Courtroom. The red benches on the right are reserved for guests of the Justices. The black chairs in front of those benches are for the officers of the Court and visiting dignitaries.

Overhead, along all four sides of the Chamber, are sculpted marble panels, the work of Adolph A. Weinman:

-Directly above the Bench are two central figures, depicting Majesty of the Law and Power of Government. The group at the far left represents Safeguard of the Rights of the People, and Genii of Wisdom and Statecraft. The far right group represents the Defense of Human Rights. -To the right is a procession of historical lawgivers including: Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius and Augustus. They are flanked by figures symbolizing Fame and History. -To the left are later historical lawgivers including Napoleon, John Marshall, William Blackstone, Hugo Grotius, Saint Louis, King John, Charlemagne, Mohammed and Justinian. Figures representing Liberty and Peace and Philosophy appear at either end. -Symbolized on the back wall frieze is Justice with the winged female figure of Divine Inspiration, flanked by Wisdom and Truth. At the far left the Powers of Good are shown, representing Security, Harmony, Peace, Charity, and Defense of Virtue. At the far right the Powers of Evil are represented by Corruption, Slander, Deceit, and Despotic Power.

The main floor is largely occupied by the Justices' Chambers, offices for law clerks and secretaries, the large, formal East and West Conference Rooms, the offices of the Marshal, an office for the Solicitor General, the lawyers' lounge, and the private conference room and robing room of the Justices. This office space surrounds four courtyards with central fountains.

Most of the second floor is devoted to office space including the offices of the Reporter of Decisions and the Legal Office. The Justices' library reading room and the Justices' dining room are also located here.