Supreme Court and Government

The power was formally recognised by the court in the case of Marbury v Madison (1803), when part of a statute, the Judiciary Act of 1789, was declared unconstitutional.

The power of judicial review means that the Supreme Court has the right to strike down any law that it considers unconstitutional. Quite what is constitutional and what is not depends, as with all issues of statutory legislation, on the justices themselves. The assertion that judges merely declare the law, rather than interpret and make it, has been described by Mason, among others, as the "cult of the robe". Whether the Supreme Court chooses to exercise its right to judicial review and bring itself into conflict with the other branches or not is therefore up to the justices themselves, who might or might not be influence by the socio-economic climate of the time. The independence of the Court is protected by the life tenure, removal only on impeachment (which has only happened successfully ten times), and the constitutional guarantee of remuneration. The latter, though, has been used by Congress to "punish" the Court at several times in its history: in the mid-1960s, the justices received a pay increase of only half the raise justices on the lower federal courts received. Congressmen during this period, when the court was playing a very activist role, especially in the area of civil rights, that it was oppositional.

The New Deal era is the classic example of how the Supreme Court used its power in opposition to the other branches of government. This is because in the face of the high support the New Deal received from the public and from Congress, key elements of its legislative framework were deemed unconstitutional, although other elements were held to be acceptable. This dichotomy is due to the presence of a conservative bloc, consisting of Justices Van Devanter, McReynolds, Butler, and Sutherland, which would occasionally be supported by Justice Roberts and Chief Justice Hughes. The outcome of any case can therefore be said to have depended on the decisions of the last two. However, some New Deal cases were upheld, for instance the Gold Clauses Cases (1935), regarding the right of Congress to void contracts demanding payment in specie, or the creation of the Tennessee Valley Authority in Ashwander v TVA (1936). For much of the early part of the Twentieth Century, and even before, the Court had been opposed to excessive intervention in the economy from either level of government. Cases like Lochner v New York (1905), where a state law restricting bakers' working hours was struck down, or Hammer v Dagenhart (1918), in which a federal law forbidding child labour was nullified, were common. Axiomatic to cases involving federal laws was the right granted by the constitution of Congress to regulate "interstate commerce", and what this entailed. On this point, most of the New Deal cases heard prior to 1937 were deemed to fail on. The Supreme Court had long established a difference between "direct" and "indirect" effects on interstate commerce, and it was felt that elements of the New Deal legislation fell into the latter category, and thus were outside of the control of Congress. This was the case in Schechter Brothers v US (1935), where in Hughes's opinion the poultry business was too localised to be considered "interstate". Although this was in opposition to the other two branches, and the Supreme Court does not consider itself bound by precedent, it does tend to follow past decisions, which, it is said, enables some degree of consistency. This may be used in part to explain why the Court was opposed to the National Industrial Recovery Act, but the economic and political outlook of the justices who formed the majority is likely to have been a more important factor.

A case can be made in support of the Schechter decision. The Supreme Court used its power of opposition to the other branches of government in order to keep the constitutional doctrine of the separation of powers in place. Under the National Industrial Recovery Act, Congress authorised the executive to draw up regulatory codes for business in various areas with the help of industry. The Court felt that this involved the executive being given too free a hand to legislate: although delegation to the executive is commonplace (for example the Federal Communications Commission which oversees the radio spectrum), it was felt that the guidelines issued by Congress were so vague, the executive to legislate too freely. This is an example of how the Supreme Court uses its power of opposition to maintain the constitution. Indeed, recently the Supreme Court overturned an act giving the President the right to veto parts of bills, rather than the entire bill itself (the "line-item veto"). Again, despite having the support of Congress and the Presidency, the Court held that it encroached Congress's sole right of legislative power.

The use of the power of opposition, however potent, is up to the judges. After the two further pieces of New Deal legislation were struck down (Carter v Carter Coal Company (1936) invalidated the Bituminous Coal Conservation Act, whilst US v Butler (1936) set aside the Agricultural Adjustment Act), and Roosevelt had won the 1936 election on a landslide vote, he announced he would seek to increase the number of justices, on the tenuous claim that the extra justices would ease the court's workload. Although the number of justices is not sacred, the explicit politicisation of the scheme garnered much opposition within Congress and elsewhere. Although the bill failed, shortly after the announcement, the Supreme Court upheld the constitutionality of the National Labour Relations Board in NLRB V Jones and Laughlin Steel Corp. (1937) and a minimum wage law from Washington (West Coast Hotel v Parrish [1937])[2]. It has been suggested that these decisions were made after Roosevelt's announcement, but they were actually made prior to it. Either it, it restored confidence in the Court, and shortly after Van Devanter retired, offering the President the opportunity to nominate a successor. After this, New Deal legislation was upheld. The Court's power of opposition was not curtailed by the loss of Devanter and the members of the conservative bloc who ceased to sit on the court after his departure, but the political leanings of the court changed to being more sympathetic to Roosevelt.

Although the Supreme Court has the ability to directly oppose the other branches of government, and rule whether a state law is compatible with the federal constitution, it has no power to enforce this decision. This was amply demonstrated in the civil rights cases under the Warren court. Although the case of Brown v Board of Education (1955)[3] ruled that schools had to desegregate "with all deliberate speed" (overruling Plessy v Fergusson [1896] and its doctrine of "separate but equal"), by 1964 only 2 per cent of schools had done so. Further, many legislatures in the South either procrastinated (the opinion did use the word "deliberate", which was later regretted by Warren) or actively resisted any attempt by local school boards to comply with the ruling. When the school board in Little Rock, Arkansas, began to desegregate in 1957, the state governor, Orval Farbus, ordered the state's National Guard to block the entrance of the Central High School, to prevent nine black students from entering. A federal district court ordered the guard to be withdrawn, finding Farbus's claims of possible violence groundless. When the students tried to enter, disturbances among the crowd caused them to leave. President Eisenhower, who had remained silent on the segregation issue, ordered federal paratroopers to move in and allow the students to enter. The school board asked for a delay in implementation of the plan, but in Cooper v Aaron, the Supreme Court denied them this. This case illustrates how the Supreme Court cannot have its decisions implemented, other than through the federal court structure. More importantly, it shows that the Supreme Court's power might not primarily be that of opposition to the other branches of government. Neither Congress nor the Presidency had any intention of intervening in the segregation issue at the time. The Court was actively pursuing reform in an area untouched by the other two branches of government, though it was limited by its inability to actively enforce its rulings.

The Supreme Court's role may be said to be primarily that of opposition to the other branches of government. The doctrine of the separation of powers requires that it acts as a counter-balance to the popularly-elected branches of government, and its right to judicial review enables it to be an effective check against any possible encroachments to the constitution. What, though, the constitution actually says is in the hands of the justices. A conservatively minded court, like that under Chief Justice Hughes in the 1930s, would be expected to oppose any legislation as dramatic as the New Deal. A more liberally minded court might uphold them when challenged, or even involve itself in areas which the other branches are unwilling to interfere with, as with the Warren court. However, it can only act when a case is brought to it, and even then it may not be able to enforce its decisions.

[1]Indeed, the framers' distrust of the political whims of the mass is evident in the fact that originally only members of the House of Representatives were directly elected, Senators were chosen by the state legislatures, and that the President was to elected indirectly through an electoral college. Of the last two points, only the third is still the case.

[2] A year earlier an "almost identical" (R. L. Solomon, entry under "Court-packing" in Oxford Companion to the Supreme Court of the United States, OUP,[1992]) law from New York was nullified.

[3] Two judgements were made. Brown v Board of Education (1954) discussed the merits of the case. The 1955 judgement dealt with the question of relief.