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.
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
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.
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