A 2020 Primer on the U.S. Constitution: The Judiciary, Article III


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.

Today, as the governors of the various states tangle with the Trump administration over their respective responsibilities during a public health crisis, it might comfort you to know that the conflict is as old as the country itself.

So begins Article III of the U.S. Constitution calling on Congress to create the third branch of government.

Article II assigns the power to nominate “Judges of the supreme Court” to the president “by and with the Advice and Consent of the Senate.” Beginning with the Judiciary Act of 1789, the rest of the federal court system has been established through legislation and today includes 94 district courts and 13 circuit courts to which district court decisions can be appealed.

California belongs to the Ninth Circuit along with several other states of the West. Further, each of the states has developed their own court system including state supreme courts.

The 1789 law also determined that the Supreme Court would consist of a chief justice and five associate justices. In 1869, Congress set the number of justices at nine where it has remained ever since. While Congress retains the power to change this number, efforts to influence the make-up of the Court have been met with criticism, most notably during the 1930s when Franklin Roosevelt attempted to add six justices in order to fashion a court that would support his New Deal programs.

Supreme Court justices serve for life so that they, alone, among the three branches, are not subject to the whims and passions of the people. Ideally, justices should evaluate the law apolitically, although whether this occurs has been subject to heated debate.

A vast majority of cases heard by the Supreme Court are based upon appeals from the circuit courts or from various state supreme courts. However, appeals from the states must be based upon a question of federal law or the U.S. Constitution.

Sometimes different circuit courts arrive at conflicting answers to the same legal question. These “circuit splits” can sometimes prompt the Supreme Court to settle the inconsistency, yet they hear only about two percent of appeals. Therefore, decisions of the circuit courts have clarified many important legal questions.

Fifteen years after the ratification of the U.S. Constitution, four members of a six-member court (two of the members were incapacitated by illness) decided in Marbury v. Madison, 1803 that the primary role of the Court was to keep lawmakers attuned to the limits imposed upon them by the Constitution. Marbury is viewed by many as the single most important decision ever made by the Court; claiming for itself the power to declare laws unconstitutional. Amazingly, this power of “judicial review,” leaving only a handful of unelected men and women with the final say on the law, does not emanate from the text of the Constitution.

The Constitution clearly limits lawmaking power. The Article VI “supremacy clause” states that the “Laws… shall be made in pursuance” of the Constitution. Less clear was exactly whose job it was to determine whether laws strayed from these limits.

The Marbury opinion claimed that power for the Court. You would not be far off the mark to notice that this ultimate authority rests upon little more than a group of four white guys claiming they had the right to rein in the other two branches of government. Indeed, prior to Marbury, the Supreme Court was generally viewed as insignificant.

Chief Justice John Marshall. Photo courtesy of Britannica.com

This was one of many critical decisions of the early Court overseen by Chief Justice John Marshall who served in that position for 34 years (1801-1835). (https://www.britannica.com/biography/John-Marshall/Chief-justice-of-the-United-States)

It was Marshall who determined that the court should not only settle the argument of the two parties in conflict, it should also issue a majority opinion in order to clearly define the law. Indeed, in Marbury, Marshall wrote, “It is emphatically the province and duty of the judicial department to say what the law is.”

Amazingly, Marshall had no way to enforce the profound proclamation. His extraordinary move was made possible largely through the force of his personality and the admiration of his peers. Marshall’s influence on the role of the Court today cannot be overstated.

We like to imagine that the US Constitution set things straight for the country from the very beginning. The reality is that many of the points of law and justice that we take for granted are the product of intense and enduring legal and political battles over the meaning of the Constitution.

Many of these battles, not unlike the struggles at the Constitutional Convention of 1787, pitted the various state governments against the federal government. So today, as the governors of the various states tangle with the Trump administration over their respective responsibilities during a public health crisis, it might comfort you to know that the conflict is as old as the country itself.

In 1819, the Marshall Court struck down a state law asserting the supremacy of federal law. Further, McCullough v. Maryland stated that the federal Congress had many powers beyond those explicitly enumerated in the Constitution.

Dred Scott v. Sandford, 1857 was celebrated as a great victory by the slave-holding states because it described all black Americans as “so far inferior, that they had no rights which the white man was bound to respect[.]” Dred Scott is widely viewed as one of the most contentious and reviled decisions in American history.

It would take a civil war and the Fourteenth Amendment to codify the federal/state relationship.

Despite the amendment’s clear acknowledgement that all citizens, including nearly four million former slaves, deserve “the equal protection of the laws,” another Court ruled in Plessy. v. Ferguson, 1896 that the federal government had no business interfering with state and local laws that segregated African Americans.

It is interesting to note that the lone dissenter in Plessy was Justice John Marshall Harlan, named by his father to honor Chief Justice John Marshall. In disagreeing with the majority, Harlan laid out many of the arguments that would later be adopted.

In 1954, the Court led by Chief Justice Earl Warren, in Brown v. Board of Education, overturned Plessy in perhaps the clearest illustration of our Constitution as a “living” document, one which is meant to be interpreted to meet the needs of modern society.

This idea of a “living Constitution” is not without its critics.

Originalists argue that interpretations should not stray from the strict and definitive text of the Constitution. For example, originalists were not happy with the Warren Court (1953-1969) which significantly altered the social landscape of the country. Not only did this Court end legally mandated segregation in the Brown decision, it essentially ended prayer in public schools, redefined the protections afforded those encountering the criminal justice system, and dramatically expanded civil rights.

The Constitution is clearly more “alive” than originalists contend.

Chief Justice John Roberts. Photo courtesy of Wikipedia

As we look at today’s Court, led by Chief Justice John Roberts, we see once again the accusations of partisanship and dirty politics characterizing the ostensibly independent body. There are signs, though, that Roberts is determined to maintain the institution as a calm and moderating force during turbulent times. (https://www.nytimes.com/2018/12/23/us/politics/chief-justice-john-roberts-supreme-court.html?auth=login-email&login=email)

As John Marshall exemplified, and Roberts seems to recognize, the credibility of the Court is dependent upon the objective and non-partisan behavior of the justices. With several polarizing issues on the horizon in a hyper-partisan world, we shall soon learn if this high court can live up to this high ideal.


Jimmy P. Morgan

Jimmy P. Morgan is a semi-retired History teacher who writes about World Affairs, Social Justice, Politics, and Education. He can be reached at JimmyPMorganDayz@gmail.com.

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