Concise Evolution of the Supreme Court
Return to Managing a Constitution 12/21/18


Founders View the Court?
The Framers devoted relatively little energy to the judiciary, leaving its powers mostly vague and undefined. Alexander Hamilton argued that the judiciary would be the "least dangerous'' branch, with the justices dependent on Congress for their salaries and budget. During the first years of its existence, the Supreme Court heard only four cases. When first chief justice John Jay resigned to become governor of New York, newspapers framed the move as a promotion.

Change Came Quickly
Fourth chief justice John Marshall increased court power by asserting it could determine and strike down state laws as unconstitutional. He often ruled  federal laws superior to state laws. Small government–minded politicians accused the Marshall court of judicial overreach.

Change Created Constitution?
Roger B. Taney, a slaveholding Maryland tobacco planters succeeded Marshal.  His court's  most infamous decisions was that an enslaved man could not be citizens, "had no rights and  could nor sue for his freedom. The court further ruled that the federal government could not restrict slavery in the territories. This decision further polarized the country, emboldening Southern slaveholders and tarnishing the court's Northern reputation. When Taney ruled against President Abraham Lincoln's suspension of habeas corpus for suspected Confederate partisans, Lincoln ignored the order. In 1863, congressional Republicans added a 10th pro abolition justice. After fluctuating between six and 10 justices, the 1869 Congress set the number at nine, where it remained.

Conflict Continued
In the late 19th and early 20th centuries, conservative courts struck down progressive legislation on child labor, minimum wages, and shorter workweeks. In the 1930s a court stymied President Franklin Roosevelt's pushed Congress to add as many as six new justices. Roosevelt's "court-packing scheme" met with bipartisan backlash and was ultimately shelved.

Confirmation Hearings Eventually Predominate.
Most nominees were confirmed on a voice vote. President Woodrow Wilson's nominee Louis Brandeis, the first Jewish Supreme Court nominee, brought a Public hearing. Brown v. Board of Education (1954) increased public interest so public hearing continued. Recently polarization in major culturally controversial cases has increased. Close votes before 1940 were fewer than 2 percent and lately are about 16 percent. The current court has decided 21.5 percent of its cases with a 5-to-4 ruling. Chief Justice John Roberts believes the court is perceived as clearly divided along partisan lines and could lose institutional credibility.

A Diversified Patrician Court
Today's court is the most diverse in history, with three women and two people of color. But  over half of all former justices went to an Ivy League school. All current justices but Law School Dean Justice Elena Kagan served on federal appeals courts. Fifty-eight justices have been elected officials but none of today's justices has held elected office.

magazine for only $1.00