The Supreme Court

PrintPrintEmailEmailOyez! 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!” On October 6—the first Monday of the month—those venerable words will herald the opening of the 1975–76 term of the Supreme Court of the United States, which has long been revered as the bulwark of our constitutional system. We offer here a portrait of its role in the American past.

The Supreme Court of the United States is easily the most respected and least known branch of the federal government. Once a poor relative of the Presidency and Congress, it has emerged as the pre-eminent defender of the Constitution and the chief protector of the principles of due process that underlie the Republic. Its authority reaches into every state and community across the nation, and the force of its opinions has dramatically altered contemporary life.

For all of that, the Court remains wrapped in mystery, known only by its outward forms. Its deliberations are carried on in secret, and its members are bound by custom to maintain strict silence about their work together. Only the barest public record of their discussions is ever published. Answerable in most instances only to themselves, the justices of the Court seemingly operate with near-total independence.

There is, in fact, a classic irony in the Court’s role as the guardian of democracy and individual rights, for in reality it is an elitist institution. Its membership does not reflect the population as a whole; its internal policies are generally not affected by outside influences; and its actions are often only marginally and indirectly controlled by Congress and the states. It is, by any measure, the least accessible of any governmental agency other than the CIA or the intelligence units of the armed services.

But its existence within a democratic republic is no accident, if only because the American people, from colonial times onward, have had a continuing love affair with the law. Long before the Revolution and for many years afterward travellers from abroad were consistently struck by the litigious nature of American life and the familiarity of even the most rural people with the intricacies of legal argument. “In no country perhaps in the world is the law so general a study,” Edmund Burke remarked to Parliament in 1775. “The profession itself is numerous and powerful. … But all who read, and most do read, endeavour to obtain some smattering in that science.”

Whatever the reason for such interest—some, for instance, have connected it to the legalisms of Puritan theology; others see it as the logical outgrowth of more than a century of self-rule—the American people by 1776 had made it a fundamental tenet of society that true happiness and peace must be based on “a government of laws and not of men.” As a North Carolina radical of the time wrote, even “if we are all rogues, there must be Law, and all we want is to be Governed by Law, and not by the Will of Officers, which to us is perfectly despotick and arbitrary.”

Through the long struggle with Great Britain that belief in the primacy of law prevailed, and the colonists automatically resorted to the courts for relief from the oppressive acts of Parliament or from infringements on their charter rights. Almost instinctively they turned to petitioning and other forms of legal redress as their chief means of protest before they resigned themselves at last to the necessity of armed conflict. As the townspeople of Pelham, Massachusetts, put it in 1773, the American cause was meaningless unless it was secured “by lawful and constitutional measures.”

When the Founding Fathers gathered at Philadelphia in the summer of 1787 to revise the Articles of Confederation, they were well aware of the many weaknesses in the existing government, particularly the absence of a national court system and what Alexander Hamilton called a “uniform rule of civil justice.” During the Revolution full judicial power had been lodged in the separate states—with two exceptions. Congress had been given authority to establish courts for trial of admiralty cases arising on the high seas and was itself authorized to serve as a court of final review in boundary and other jurisdictional disputes among the states, but only on petition from the state or states involved. As the delegates to the Constitutional Convention saw it, this was tantamount to no authority at all, and they were determined to supply a corrective.

After weeks of debate they settled on a bare grant of power that in its spareness belies the extraordinary influence the Supreme Court has come to exert. As provided for in Article in, Section 1 of the Constitution, “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.”