The Court over Time
The Court over Time
The judiciary is one of the three branches of government in the U.S. constitutional system. Over the past two centuries, the Supreme Court played a stabilizing role in republic self-government and has used its power of judicial review to limit the power of the other two branches when they fail to follow the Constitution. That is the case even though the Court and its dominant interpretive methods have shifted over time.
In the early republic, Chief Justice John Marshall guided the Court. During this formative phase, the Court established the principle of judicial review in Marbury v. Madison (1803). The Marshall Court also promoted national economic development, deciding several landmark cases that protected the sanctity of contracts and the free market in Fletcher v. Peck (1810) and Dartmouth College v. Woodward (1819). In addition, the Marshall Court helped to define the scope of the powers of the national government and its relationship with the states. For example, in McCulloch v. Maryland (1819), the Court ruled that a national bank was constitutional and that the states could not tax the national government. In Barron v. Baltimore (1833), the Court decided the Bill of Rights applied only to the federal government and not the states. Mostly, the Marshall Court sought to leave political questions to the other branches of government while confining itself to resolving disputes and establishing the integrity of the Court.
The Taney Court followed the Marshall Court in defining the proper scope of national authority and the proper relationship between the national and state governments. But the Taney Court also attempted to resolve the growing sectional dispute over the expansion of slavery. In the infamous Dred Scott v. Sandford (1857) decision, the Court held that Blacks were not, and never could be, citizens of the United States. In addition, the Taney Court decided that the Missouri Compromise was unconstitutional because Congress could not regulate slavery in the territories despite Article IV, Section 3 of the Constitution. The decision greatly exacerbated sectional tensions and contributed to the coming of the Civil War.
During the late 19th century, the Court decided several cases that restricted civil rights protections for freed people against state or private violations. The Reconstruction Amendments (Thirteenth, Fourteenth, and Fifteenth Amendments) sought to protect basic liberties for Black Americans and attempted to give more power to the federal government. However, the Court drew back and reined in some of those powers in the Slaughter-House Cases (1873), Civil Rights Cases (1883), and Plessy v. Ferguson (1896). The most significant civil rights case of the time was Plessy v. Ferguson (1896), in which the Court was asked to consider if a state law mandating racial segregation on railway cars violated the Fourteenth Amendment’s Equal Protection Clause, which reads, “nor shall any State…deny to any person within its jurisdiction the equal protection of the laws.” The Court infamously ruled that the law was constitutional, enshrining the idea of “separate, but equal” for decades.
In the late 19th and early 20th centuries, the Court also defended economic liberty and restricted government regulation of business, which frustrated many Progressive reformers who wanted to ease the suffering of workers and immigrants in the industrial economy. The Court used the Due Process Clause of the Fourteenth Amendment under an idea called “substantive due process,” which views certain undefined rights as protected as fundamental rights. The Court used this idea to assert “liberty of contract” as a fundamental right. This limited the regulation of working hours by state legislatures because the Court argued that workers had the freedom to sign a labor contract with an employer. The most notable and controversial case was Lochner v. New York (1905), in which the Court struck down a law preventing bakers from working more than 60 hours a week. Some critics thought the Court was simply inventing a right and preventing the government from regulating the economy.
During the Great Depression, the Court invalidated several New Deal programs that violated the Commerce Clause of Article I, Section 8 that allowed Congress to “regulate commerce with foreign nations, and among the several states.” For example, in Schechter v. U.S. (1935) it ruled the federal government unconstitutionally regulated intrastate trade that did not cross state lines, and that Congress unconstitutionally delegated its authority to the executive branch to regulate trade. Therefore, the Court declared the National Industrial Recovery Act unconstitutional. President Franklin Delano Roosevelt objected to this decision and threatened to use his power to force the retirement of existing justices and add more justices to the Supreme Court to get different kinds of rulings. His threats to “pack the Court” were unpopular among members of both parties. And in any case, in 1937, the Court became more inclined to support economic regulation in West Coast Hotel v. Parrish (1937), declaring a state law for a minimum wage for women constitutional. In Wickard v. Fillburn (1942), the Supreme Court declared its willingness to accept the constitutionality of almost any economic regulation passed by Congress. It did not strike down a national law made under the Commerce Clause until U.S. v. Lopez (1995).
During World War II, the Court decided a number of civil liberties cases. The Court decided that a state law mandating the flag salute in schools was constitutional despite the objections of Jehovah’s Witnesses on First Amendment religious freedom grounds in Minersville School District v. Gobitis (1940). Only three years later, in West Virginia State Board of Education v. Barnette (1943), the Court reversed the Gobitis decision and struck down a compulsory state flag salute statute. In Korematsu v. U.S. (1944), the Court endorsed the forcible removal of Japanese Americans from the West Coast because of Roosevelt’s Executive Order #9906.
Under the more liberal Warren Court and Burger Court from the 1950s through the 1980s, constitutional questions about civil liberties predominated major Court decisions. The Court increasingly incorporated the Fourteenth Amendment, applying the Bill of Rights to the states, and created several new fundamental rights because of substantive due process. The decisions were sometimes controversial and did not settle divisive social and cultural questions for the American public.
Brown v. Board of Education (1954) was a landmark civil rights case that banned segregation in public schools. The Court declared a right to privacy in Griswold v. Connecticut (1965) that overturned a state law banning contraception for married couples. The reasoning in Griswold provided the basis for the decision in Roe v. Wade (1973) protecting the right to abortion based upon a trimester system. Recently, the Court reversed the Roe decision with Dobbs v. Jackson Women’s Health Organization (2022) that returned the abortion rights issue to the states to decide. The Court also protected the rights of the accused in several cases dealing with criminal law, most notably deciding that indigent defendants were entitled to legal counsel in Gideon v. Wainwright (1963) and that the accused were entitled to have their rights read to them before police questioning in Miranda v. Arizona (1966).
In recent decades, the Court remained at the center of contentious political and social controversies such as gay marriage, gun rights, campaign finance, immigration and borders, government health care programs, and abortion rights. Supreme Court appointments became divisive and partisan, perhaps because many continue to believe the Court is the final word on the Constitution. In general, people who have not liked the outcome of cases have criticized the Court.
The Supreme Court changed in many ways over the past two centuries depending upon its purposes, the makeup of the members of the Court, and larger social, political, and economic questions that came before the Court. However, the Court also experienced great stability in attempting to render justice to the parties involved in cases even if it has succeeded imperfectly. The Court also tried to provide answers for perennial questions about the scale and scope of the government, separation of powers, and federalism.