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In deciding Constitutional issues, Supreme Court Justices generally advocate two contrasting judicial philosophies:
Judicial Self-Restraint: chief responsibility for setting public policy is with the national and state legislatures and
executives—all elected by the people. In deciding Constitutional issues, this view holds that Justices should set aside their own
preferences. They should avoid broad, sweeping opinions so as to not create new public policy. To keep the Court from
Judicial Activism: this view holds that the Court has the right to initiate public policy and about constitutionally sanctioned
changes. Court cannot—nor should not—be totally objective. With the responsibility of interpreting the Constitution, the Court
must make political decisions that will help us move toward our national goals. Judicial activism was illustrated by Chief
Justice John Marshall and the decision of judicial review.
Meaning- power to determine if laws are in harmony with the provisions of the Constitution—and if not, to declare them
invalid, void, unconstitutional.
Marbury v. Madison (1803) – Marshall: Case involved the appointment of Marbury by outgoing Adams and denied by
incoming Madison. Marshall’s decision—Madison wrong to deny appointment, but Court couldn’t demand Madison to honor
the appointment. Decision: the Supreme Court may declare unconstitutional any law contrary to the Constitution.
The constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into
any form they please.
THE SUPREME COURT: CENTER OF CONTROVERSY. At various times the Court, by virtue of the leadership of its
Chief Justice and its decisions upon vital public issues, has been at the center of stormy controversy.
The Marshall Court (1801–1835)
One of the most significant periods during the history of the Court was the tenure of Chief Justice John Marshall (1801 to
1835). The Marshall Court reflected an activist legal philosophy (1) strengthened the Court at the expense of other federal
branches by assuming the power of judicial review; (2) expanded federal power at the expense of states (3) protected terms of
business contracts against state law and (4) upheld the loose interpretation of the Constitution’s elastic clause.
Jefferson: “The Constitution is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any
form they please.”
In the landmark case Marbury v. Madison (1803), Marshall held that the Supreme Court could overturn a law passed by
Congress if it violated the Constitution, legally cementing the power of judicial review. The Marshall Court also made several
important decisions relating to federalism. Marshall took a broad view of the powers of the federal government—in particular,
the interstate commerce clause and the Necessary and Proper Clause. For instance, in McCulloch v. Maryland (1819), the Court
ruled that the interstate commerce clause and other clauses permitted Congress to create a national bank, even though the
power to create a bank is not explicitly mentioned in the Constitution. Similarly, in Gibbons v. Ogden (1824), the Court found
that the interstate commerce clause permitted Congress to regulate interstate navigation.
The Marshall Court also made several decisions restraining the actions of state governments. The notion that the Supreme
Court could consider appeals from state courts was established in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia
(1821). In several decisions, the Marshall Court confirmed the supremacy of federal laws over state laws. For example, in
McCulloch, the Court held that a state could not tax an agency of the federal government. At the same time, however, the
Marshall Court held in the landmark case Barron v. Baltimore (1833) that the Bill of Rights restricted the federal government
alone, and did not apply to the states. Nonetheless, the Supreme Court would in later years hold that the Fourteenth
Amendment had the effect of applying most provisions of the Bill of Rights to the states.
The Taney Court (1836–1864)
In 1836, Marshall was succeeded as Chief Justice by Roger B. Taney, who had a somewhat more limited view of the powers of
the federal government. From an aristocratic slave-holding Maryland family, Taney was a close friend of Jackson. Taney
served Jackson as Treasury Secretary and Attorney-General. Practiced greater judicial self-restraint. Favored more states’
rights. But- followed Marshall’s assertion of Court powers and used judicial review in Dred Scott case.
Controversy: Instead of settling the slavery issue as he had hoped, the decision intensified sectional passions; South was
elated-North furious. Republican Party urged the curbing of the Court’s powers.
At a time when sectional tensions between the North and South were high, many of the Supreme Court's decisions—
particularly those relating to slavery—met with controversy and contention. Most controversial was the Taney Court's decision
in Dred Scott v. Sandford (1857). Dred Scott, a slave from Missouri, sued for his freedom on the grounds that his master had
taken him into Illinois and the territory of Wisconsin, both of which prohibited slavery, for extended periods of time. Taney,
however, ruled that members of the African race, "beings of an inferior order," were not and could never become citizens of the
United States. Consequently, he ruled that Scott therefore had no standing to file the lawsuit. Moreover, he held that the
Missouri Compromise, under which Congress prohibited slavery in certain territories that formed part of the Louisiana
Purchase, was unconstitutional. The controversial decision met with vigorous opposition from abolitionists, and contributed to
the tensions that led to the Civil War during the next decade. The Civil War culminated in a victory for the Union and in the
abolition of slavery (see the Thirteenth Amendment).
The Chase, Waite, and Fuller Courts (1864–1910)
In the midst of the Civil War, Abraham Lincoln appointed Salmon P. Chase to be Chief Justice. Chase had strong anti-slavery
credentials and had previously served Lincoln as Secretary of the Treasury. His post-Civil War tenure featured several key
decisions affirming the indestructibility of the Union. Chase was considered highly ambitious, even for a politician. In 1872,
Chase, while serving on the Supreme Court, ran for the Presidency, but his efforts were ultimately unsuccessful. Chase
continued to serve as Chief Justice until his death in 1873.
In the aftermath of the Civil War Congress passed and the states ratified the Fourteenth Amendment, which, among other
things, prevented states from abridging the "privileges and immunities of citizens," from denying due process of law, and from
denying equal protection of the laws to any person. Many cases that came before the Court in the post–Civil War era involved
interpretation of the Fourteenth Amendment. In the Civil Rights Cases (1883), the Court under Chief Justice Morrison Waite
held that Congress could not prohibit racial discrimination by private individuals (as opposed to governments) on the grounds
of the Fourteenth Amendment. Later, in Plessy v. Ferguson (1896), the Court under Chief Justice Melville Fuller determined
that the equal protection clause did not prohibit racial segregation in public facilities, as long as the facilities were equal (giving
rise to the infamous term "separate but equal"). The sole dissenter in that case was John Marshall Harlan.
The White and Taft courts (1910–1930)
In the early twentieth century, the Supreme Court established that the Fourteenth Amendment protected the "liberty of
contract." On the grounds of the Fourteenth Amendment and other provisions of the Constitution, it controversially overturned
many state and federal laws designed to protect employees. The first important decision of the era was Lochner v. New York
(1905), in which the Court overturned a New York law limiting the number of hours bakers could work each week. In Adair v.
United States (1908), the Court overruled a federal law which forbade "yellow dog contracts" (contracts that prohibited
workers from joining unions). Adkins v. Children's Hospital (1923) involved a decision that a District of Columbia minimum
wage law was unconstitutional.
In 1925, the Supreme Court made a landmark ruling in Gitlow v. New York, establishing the doctrine of incorporation, under
which provisions of the Bill of Rights were deemed to restrict the states. Originally, as Chief Justice John Marshall ruled in
Barron v. Baltimore (1833), the Bill of Rights restricted only the federal government; however, during the twentieth century,
the Supreme Court held in a series of decisions the Fourteenth Amendment had the effect of applying some (but not all)
provisions of the Bill of Rights to the states. The first such decision was Gitlow, in which the Supreme Court incorporated the
protection of freedom of speech afforded by the First Amendment. Important decisions relating to incorporations were made
during later decades, especially the 1960s.
The Hughes, Stone, and Vinson courts (1930—1953)
Charles Evans Hughes- Republican candidate for President in 1916, Secretary of State under Harding and Coolidge.
Nominated by Hoover as Chief Justice. Upheld several New Deal laws as unconstitutional.
Controversy FDR complained of “horse and buggy” justices; feared fate of other New Deal measures. Proposed Court
reorganization plan- which would allow him to add up to 6 additional justices. Labeled Court packing by critics. Meanwhile,
Hughes swung over to the more liberal position of the Court and upheld two major laws- NLRA (collective bargaining) and
Social Security Act.
During the 1930s, the Supreme Court contained both a solid liberal and conservative blocs of Justices. The four conservative
Justices, known as "The Four Horsemen," consisted of James McReynolds, George Sutherland, Willis Van Devanter and
Pierce Butler. Their liberal opponents on the bench—Louis Brandeis, Benjamin Cardozo and Harlan Stone—were conversely
known "The Three Musketeers". Chief Justice Charles Evans Hughes and Justice Owen Roberts controlled the balance by
serving as the swing votes. Hughes as a progressive Republican, tended to side with the Four Horsemen, as he did in Schechter
Poultry Corporation v. United States, whilst Roberts was also swayed to the side of the conservatives.
As a result, The Court continued to enforce a Federal laissez-faire approach, overturning many of President Franklin D.
Roosevelt's New Deal programs, which were designed to combat the Great Depression, by 5–4 margins. Most notably, the
National Industrial Recovery Act was overturned in Schechter Poultry Corp. v. United States (1935), and the Agricultural
Adjustment Act was struck down in United States v. Butler (1936). In response, President Roosevelt proposed the Judiciary
Reorganization Bill (called the "court-packing bill" by its opponents), which would have increased the size of the Supreme
Court and permitted the appointment of additional (presumably pro-New Deal) Justices. The bill, however, had many
opponents, including Roosevelt's own Vice President John, and was defeated in Congress.
Soon after the proposal of the court-packing plan, however, the Supreme Court ended the trend that had prevailed since
Lochner. Justice Roberts, who had previously voted with the conservative bloc in invalidating New Deal legislation, began to
vote on the opposite side. Roberts' decision spelled the end of the Lochner era; Roberts' switch has been dubbed the "switch in
time that saved nine." As the Horsemen retired, Roosevelt, the longest-serving President in history, obtained opportunities to
replace them with more liberal Justices. After Hughes retired, Stone—The last remaining "Musketeer"—was appointed by
Roosevelt to be elevated to the position of Chief Justice. In 1945, eight of the nine sitting Justices had been appointed by
President Roosevelt, the sole exception being Owen Roberts.
The Warren Court (1953–1969)
Warren Court (1953-1969) In 1953, President Dwight David Eisenhower appointed Earl Warren, who was then governor of
California, to the position of Chief Justice. Warren's term, which lasted until 1969, was arguably one of the most significant in
the history of the Court. Under him, the Court made a long series of landmark decisions. Notable members of the liberal wing
of the Court aside from Warren included Hugo Black, William O. Douglas (the longest-serving Justice in the Court's history)
and William J. Brennan. The foremost conservative members of the Court were Felix Frankfurter and John Marshall Harlan II
(grandson of the first Justice Harlan). The first important case of Warren's tenure was Brown v. Board of Education (1954), in
which the Court unanimously declared segregation in public schools unconstitutional, effectively reversing the precedent set
earlier in Plessy v. Ferguson and other cases.
Earl Warren pursued a liberal and activist court in three major areas: (1) Brown case- racial segregation in school
unconstitutional; (2) Baker case held legislative reapportionment to be a judicial matter—considered a milestone in the
democratization process; (3) several cases (see notes/text) affected persons accused of crime—rights to a lawyer and against
Controversy: Condemned by opponents for violating precedents, being too political rather than legal, and taking over powers
of other bodies of government. Hailed by supporters for upholding the Constitution, protecting the rights of the people against
governmental tyranny, and furthering democracy.
Eisenhower- “Warren—the biggest damfool mistake I ever made.”
L. Johnson- “Warren—the greatest Chief Justice of them all.”
The Warren Court also made several controversial decisions relating to the Bill of Rights. The doctrine of incorporation, which
had first taken root in Gitlow v. New York was applied fully to most provisions of the Bill of Rights. In Engel v. Vitale (1962),
the Court declared that officially sanctioned prayer in public schools was unconstitutional under the First Amendment.
Similarly, in Abington School District v. Schempp (1963), it struck down mandatory Bible readings in public schools. The
Court also expanded and incorporated the rights of criminal defendants, on the basis of the Fourth, Fifth, and Sixth
Amendments. In Mapp v. Ohio (1961), the Court incorporated the Fourth Amendment and ruled that illegally seized evidence
could not be used in a trial. Gideon v. Wainwright (1963) established that states were required to provide attorneys to indigent
defendants. Miranda v. Arizona (1966) held that the police must inform suspects of their rights (including the right to remain
silent and the right to an attorney) before being interrogated. (The decision is the source of the famous Miranda warning.)
Another significant and controversial decision made by the Warren Court was Griswold v. Connecticut (1965), which
established that the Constitution protected the right to privacy.
The Burger Court (1969–1986)
Chief Justice Earl Warren was succeeded by Warren E. Burger, who served from 1969 to 1986. He was aassistant Attorney
General under Eisenhower. Appointed by Nixon, Nixon’s choice reflected his promise to appoint those who would “interpret
the law – not make the law” and “interpret the Constitution strictly and fairly and objectively.” Burger supported the
philosophy of judicial self-restraint. He was a believer in “law and order”. Urged “fair”, not “perfect” trials for accused persons
and criticized the Warren court. Was moderate on civil rights
Controversy: Court reflected a new conservativism. Court upheld school desegregation in the South but did not expand civil
rights. Also declared death penalty as unconstitutional (1972) and struck down state anti-abortion legislation in 1973. (Roe v.
Wade- legalized abortion during first 3 months of pregnancy)
The Burger Court is best remembered for its ruling in Roe v. Wade (1973), which held that there is a constitutionally protected
right to have an abortion in some circumstances. The Court also made important decisions relating to the First Amendment. In
Lemon v. Kurtzman (1971), it established the "Lemon test" for determining if legislation violates the establishment clause.
Similarly, it established the "Miller test" for laws banning obscenity in Miller v. California (1973).
Other rulings include Landmark Communications v. Virginia in which the court ruled for fining a newspaper for revealing the
identity of a judge under investigation by state commissioner H. Warrington Sharp. The Burger Court also established a
moratorium on capital punishment in Furman v. Georgia (1972), holding that states generally awarded death sentences
arbitrarily and inconsistently. The moratorium, however, was lifted four years later in Gregg v. Georgia (1976). Also in United
States v. Nixon (1974), the court ruled that the courts have the final voice in determining constitutional questions and that no
person, not even the President of the United States, is completely above law.
The Rehnquist Court (1986–2005)
Chief Justice William Rehnquist served from Burger's retirement in 1986 until his own death on September 3, 2005. The
Rehnquist Court generally took a limited view of Congress's powers under the commerce clause, as exemplified by United
States v. Lopez (1995). The Court made numerous controversial decisions, including Texas v. Johnson (1989), which declared
that flag burning was a form of speech protected by the First Amendment; Lee v. Weisman (1992), which declared officiallysanctioned, student-led school prayers unconstitutional; Stenberg v. Carhart (2000), which voided laws prohibiting late-term
abortions; and Lawrence v. Texas (2003), which struck down laws prohibiting sodomy. (Some commentators see these
decisions as part of the "culture wars.") Another controversial decision of the Rehnquist court in 2003 was Gratz v. Bollinger
which upheld affirmative action. Perhaps the most controversial decision made by the Court came in Bush v. Gore (2000),
which ended election recounts in Florida following the presidential election of 2000, allowing George W. Bush to become the
forty-third U.S. President.
Rehnquist led a remarkably stable Court - for the eleven years preceding Rehnquist's death, the composition of the Court
remained unchanged - the longest such stretch in over 180 years.
O'Connor's retirement
On July 1, 2005, Justice O'Connor announced that she would retire from the Supreme Court upon the confirmation of her
successor. President Bush originally nominated United States Court of Appeals for the D.C. Circuit Judge John G. Roberts to
replace O'Connor on July 19, 2005. However, following the death of Chief Justice Rehnquist on September 3, Bush renominated Roberts as the new Chief Justice. The President subsequently nominated White House Counsel Harriet Miers to
replace Justice O'Connor on October 3, 2005, but Miers withdrew her nomination on October 27, 2005 after controversy arose
ostensibly from a Congressional request into notes about her role as White House Counsel. On October 31, 2005, President
Bush nominated United States Court of Appeals for the Third Circuit Judge Samuel Alito to replace Justice O'Connor. On
January 24, 2006, the Senate Judiciary Committee sent the nomination of Alito to the 100-member Senate. On January 31,
2006, the Senate confirmed Alito, 58-42, at which point O'Connor's retirement became effective.
The Roberts Court (2005–)
Chief Justice John G. Roberts was confirmed by the United States Senate on September 29, 2005 and presided over the Court
for the first time on October 3, 2005, the day the 2005–2006 session opened. On October 31, President Bush announced that he
was nominating Samuel Alito to O'Connor's seat, and he submitted the nomination to the Senate on November 10, 2005. Under
Roberts the Court has drifted primarily to the right in areas like free speech (Garcetti v. Ceballos), the death penalty (Kansas v.
Marsh), abortion (Gonzales v. Carhart) and the right to privacy (Hudson v. Michigan). On November 20, 2007, the Court
agreed to hear a case, District of Columbia v. Heller, that was regarded as the first important and historically significant
constitutional decision on the Second Amendment to the Constitution's Bill of Rights since 1875. On March 18, 2008 the
Supreme Court heard arguments concerning the constitutionality of a District of Columbia ban on handguns. On June 26, 2008
the Supreme Court ruled that "The Second Amendment protects an individual right to possess a firearm unconnected with
service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home."