The Authority of Law, outside the Supreme Court Building. Credit: Wikipedia.

Worth Reading

• Ken Shear: Why Justices of the Supreme Court Make Bad Historians
• NYT Judicial Correspondent Anthony Lewis: "The Supreme Court is a Very Great ... Institution," but Today It's "Outrageous"
• Marc Bacharach: The Supreme Court and Judicial Activism
• Tony Mauro: Obama's Unprecedented Criticism of the Supreme Court

Background

The Supreme Court of the United States has been a fountain of controversy throughout its 223-year history. Cries of "polarization," "judicial activism," and "legislating from the bench," however, have grown louder over the past ten years from both liberals and conservatives (albeit for very different reasons).

The current Supreme Court is divided between five justices appointed by Republican presidents and four justices appointed by Democrats.

Appointed by Republicans:

Antonin Scalia (Reagan)
Anthony Kennedy (Reagan)
Clarence Thomas (George H.W. Bush)
Chief Justice John Roberts (George W. Bush)
Samuel Alito (George W. Bush)

Appointed by Democrats:

Ruth Bader Ginsburg (Clinton)
Stephen Breyer (Clinton)
Sonia Sotomayor (Obama)
Elena Kagan (Obama)

Barack Obama has a more contentious public relationship with the Supreme Court than any president since Franklin Roosevelt. He took the almost unprecedented step of criticizing the decision in the 2010 case Citizens United v. Federal Election Commission during his 2010 State of the Union address. He said: "with all due deference to separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections." Justice Samuel Alito, a conservative appointee of President George W. Bush, shook his head and visibly mouthed "not true." More recently, the conservative members of the Court have given indications that they will overturn the key individual mandate provision of Obama's signature legislation -- the Affordable Care Act, a possibility that many commentators compare to the Supreme Court's overturning of New Deal legislation in the 1930s.

What the Liberals and Conservatives Say

Conservatives and liberals have been at odds over the Supreme Court and the proper interpretation of the Constitution for decades, but ironically most of the legal arguments both make against the other side boil down to this: "You're just trying to implement your own policy preferences!"

Though conservative justices now form a slim majority on the Supreme Court, conservatives have generally been critical of the judiciary in general, and the Supreme Court in particular, since the 1950s. Liberal Supreme Court justices -- for example Harry Blackmun, the author of the majority opinion on Roe v. Wade (1973), the decision which legalized abortion -- have been and continue to be criticized for their "judicial activism," a term which conservative thinker Thomas Sowell defines as "fear that the judge will impose his own personal preferences in his decisions, to such an extent as to ultimately negate the very meaning of law...." A related criticism is that liberal judges "legislate from the bench," meaning that they essentially create new laws and legal rights in their decisions, bypassing the democratic process -- Miranda v. Arizona (1966), the case which established that police must make a suspect under arrest aware of his/her rights ("You have the right to remain silent..."), is often held as an example.

Most conservative judges and Supreme Court justices today subscribe to some form of "originalism," a legal doctrine which holds that laws should be examined exclusively through the lens of what the intention of the Founding Fathers intended, or alternatively what a reasonable person living at the time of the writing of a law thought it meant at the time (Antonin Scalia is a proponent of this school of thought).

Liberals are also intensely critical of the Court's judicial activism. There have been a number of major 5-4 decisions in the past twelve years that have reversed decades of previous legal precedents and, liberals contend, were decided by the personal partisan politics of the justices. The Supreme Court in Bush v. Gore (2000), they argue, essentially selected George W. Bush as president because of the partisan leanings of the justices; the overturning of gun control laws in McDonald v. Chicago (2010) and the removal of campaign finance restrictions in the Citizens United case are typically also cited as examples of conservative judicial activism. Liberals point to Citizens United, in particular its "corporate personhood" provision -- as an example of a return to late nineteenth-century Gilded Age legal logic, one that is antithetical to the modern state.

Liberals have also been critical of originalism, arguing A) that the Constitution is a living document, in the sense that it was deliberately drafted to be dynamic and flexible -- and that it necessarily has to be, since it's over two hundred years old, and B) originalism is often just a cover for enacting the personal policy preferences of conservative judges, especially considering that conservative legal scholars rarely research what a reasonable person in eighteenth-century America actually thought.

Historical Background

The judiciary has less text devoted to it than either of the other two branches of government in the Constitution; The Supreme Court is vested with the "judicial Power of the United States" the president is granted the power to appoint justices with the consent of Congress, and it is specified in which cases the Court has original jurisdiction. That's it. There's no mention of the number of justices (the number fluctuated from as few as six to as many as ten between 1789 and 1869, before nine justices were settled on -- though FDR attempted to increase the size of the bench to fifteen in 1937). There's also no mention of the Supreme Court's principle power: judicial review.

Judicial review means the Supreme Court has the power to determine whether a law is unconstitutional. The Court ruled that it had this power under Articles III and VI of the Constitution in Marbury v. Madison (1803). The Court seldom declared acts unconstitutional in the early republic -- it wasn't until the Dred Scott decision (which ruled that slaves and descendants of slaves had no legal standing in the United States) that a law was declared unconstitutional. Things picked up a bit after the Civil War, but in total only around 150 acts of Congress have been declared unconstitutional.

So what about the famous Supreme Court cases, like Brown v. Board of Education (1954) -- didn't the Supreme Court rule that school segregation is unconstitutional? Well, yes, but schools weren't segregated because Congress passed a federal law -- school segregation was legally based on a patchwork of state and local laws. The Supreme Court, as the supreme legal authority in the United States, has the power to determine the constitutionality of those laws as well.

The post-Civil War Supreme Court has gone through a number of different legal "eras," in which it has taken a more expansive or less expansive view of federal power. Until the 1930s, the Court took a somewhat more restrictive view, which led it to strike down a number of Franklin Delano Roosevelt's New Deal laws. In response, Roosevelt proposed to expand the number of justices on the Court from nine to fifteen, with the newcomers naturally selected for their willingness to go along with the administration. This proposal, the last serious attack on the political independence of the Court, never passed, due both to negative public opinion and the retirement of one justice, freeing up a spot for a Roosevelt nominee.

The Warren Court, so named after Chief Justice Earl Warren, who served from 1953-1969, is the Court most modern conservatives point to as the definition of one that practices judicial activism. The Warren Court struck down school segregation; mandated that criminal suspects must be made aware of their rights when arrested -- which included the right to an attorney; and established the principle of one man, one vote in creating congressional districts. While not a decision of the Warren Court, the Roe v. Wade ruling that legalized abortion is widely considered to be the pinnacle of late twentieth-century Supreme Court liberality.

Since the 1970s and especially the 1980s, however, under Chief Justices Warren Burger and William Rehnquist, the Court has become much more judicially conservative, often striking down laws that broadly extended federal powers. This conservative trend has accelerated under Chief Justice John Roberts.