U.S. GOVERNMENT | A resilient balance of institutions
28 December 2007
U.S. Supreme Court Is a Unique Institution
Court empowered as highest national court and arbiter of constitutionality
The following material is an excerpt from an article by University of Richmond Law Professor John Paul Jones in the April 2005 e-Journal The Supreme Court of the United States: Highest Court in the Land.
In the majority of modern states, one tribunal is empowered to assess the constitutionality of actions by parliament and the executive while another acts as the final court of appeal.
The Supreme Court of the United States is empowered as both the highest national court and the legal arbiter of constitutionality. One day's work at the Supreme Court thus might address matters of historic import, while others are filled with the ordinary chores of a review court, including the supervision of the federal judicial department and the correction of nonconstitutional decisions by subordinate courts.
The U.S. Constitution makes the Supreme Court of the United States a court of first instance (the court of "original jurisdiction") for only two rare types of cases: those in which one American state sues another (usually about a disputed boundary or water rights) and those involving a foreign diplomat. It is a court of review ("appellate jurisdiction") for all other types of cases within the reach of federal judicial power, which in the U.S. federal system is limited both by the nature of the litigants (federal "diversity" jurisdiction applying to cases between citizens of different states) and the subject matter of their dispute (the case must arise under the Constitution, a federal law or a treaty to which the United States is a party).
In the U.S. federal system, the highest courts of the 50 states remain the courts of last resort for all cases in which state law is applied to disputes between citizens of the forum state. Like the federal and state courts below, the U.S. Supreme Court generally decides cases by reference to norms found in the common law, in previously decided cases, in legislation or in a constitution, state or federal. Since Marbury v. Madison (1803), American courts are empowered to review government action for conformity with the supreme law of the land, the U.S. Constitution.
The constitutional provisions that established the Supreme Court deliberately provide only a few basic jurisdictional rules. They do not dictate the procedures under which the Supreme Court does its business and they are vague about the court's composition. Article III does not limit the number of Supreme Court judges (justices), and Congress, which has the power to alter the court's size and composition, has not done so in more than a century, even as the volume of applications to the Court has grown dramatically. Moreover, by its own decision, the court continues to hear cases sitting only en banc (with all justices participating).
Unlike some modern constitutions, the U.S. Constitution does not explicitly command judges to explain their decisions in writing, but American courts, including the Supreme Court, long ago adopted the practice of issuing written opinions explaining and enlarging upon their judgments.
Whereas multijudge English courts publish the separate opinions of each judge involved, the U.S. Supreme Court early embraced the alternative of joint opinions written by one of the justices and endorsed by one or more of the others. The complete text of these opinions are published widely, so that all may review almost immediately the legal reasoning on which important judgments are founded. From the beginning, dissenting justices have been heard and their dissents published alongside the majority opinion (or opinions). This allows readers to see, for example, how close the minority view came to persuading one or more justices in the majority. There are several examples in U.S. constitutional history of dissents embodying interpretations that later supplanted the then-majority view.
Although the Constitution imposes specific age, residency and citizenship qualifications for the president of the United States and members of Congress, it sets no similar qualifications for Supreme Court justices, except that every candidate must be the president's choice and acceptable to a majority in the Senate. No prior experience as a judge, no expertise as a constitutionalist, indeed, no training in the law at all, is required.
Nevertheless, virtually every appointment has come from the pool of those with training in the law and professional experience as lawyers and judges. On a few occasions, great constitutional controversies with obviously moral dimensions (slavery, abortion, segregation) have polarized American opinion about the selection of Supreme Court justices, but whether any candidate's sympathy with one side of a particular issue should determine his or her selection remains an open question.
According to the Constitution as amended, each U.S. president serves a term of four years and may be re-elected for only one additional term. U.S. senators serve six-year terms and may be re-elected without limit, while members of the House of Representatives serve terms of two years and similarly may be re-elected without limit. But federal court judges, including the justices of the Supreme Court, serve without any limit short of their lifespans. The youngest justice was appointed to the Supreme Court of the United States when he was only 29 years old; another served on the court for 34 years.
CONSTITUTIONAL MATTERS
Not all American constitutional controversies are major ones, nor are they all decided by the Supreme Court, or indeed by any court. As elsewhere in the world, countless constitutional questions are decided daily by officials of federal and state governments, as well as by legislators voting in Congress and state assemblies. Most constitutional questions in America are answered by democratically elected officials who come and go from the offices in which this power resides. As they come and go, so changes the working version of the Constitution. That said, there remain the relatively few controversies, usually persistent and notorious, that come finally to the Supreme Court.
To the extent that any jurist's opinions of fundamental constitutional matters remain more or less intact after weathering term after term of debate, those of a Supreme Court justice tend to be more deeply rooted and more influential than those of decisionmakers in the political branches of government. One could wonder whether the Constitution itself is served well by a system in which a particular constitutional jurisprudence can become so personally entrenched. Calls for limiting judicial tenure, in particular that of the Supreme Court, have sounded occasionally since the turn of the 19th century, so far without persuading the supermajorities required to enact the necessary constitutional amendment.
In the United States, citizens sometimes look with awe upon the evolution of the judicial power outlined by the Constitution. A nonelected and tenured federal judiciary, led by the Supreme Court of the United States, has assumed the power to declare unconstitutional and, therefore, void the acts of elected assemblies and executives, state and federal.
It might seem surprising that the politico-legal culture has for so long and without great stress accommodated that development. The Court's constitutional judgment has been overridden by constitutional amendment only three times so far -- by ratification of the Constitution's 11th (limiting federal lawsuits by a citizen of one state [or of a foreign nation] against another U.S. state), 14th (overruling the decision in Scott v. Sanford that blacks could not be citizens with access to the federal courts) and 16th (allowing Congress to levy an income tax) amendments. A closer look ought to reveal the largely self-imposed (but no less effective) limits within which judicial power has been constrained, as well as the political forbearance upon which its continued exercise depends.
American rule of law is fluid, collaborative and adaptable; a less supple constitutional order might not have survived as long.
