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Published online by Cambridge University Press: 16 January 2009
Immediately after the 1970 Congressional elections in America, The Times noted that proposals to lower the voting age were rejected by the voters in ten of the fifteen states where these proposals had been put to a referendum. It was then observed: “The issue will be decided this term by the Supreme Court, which will almost certainly take the result of the state elections into account.” To the English reader this may seem to be sociological jurisprudence carried to a ludicrous extreme or some primitive system of adjudication by popular acclamation. Of course, when the constitutionality of the federal statute fixing the voting age at 18 was challenged in the Court, the petitioners were not obliged to cite the election statistics in their brief, but the saying that the justices “follow the election returns” is a maxim of American politics on which constitutional lawyers rely. What that maxim implies—Something that foreign observers may misunderstand—is that the United States Supreme Court is not just a court, at least not in the usual sense of the word. To describe it merely as a court is to ignore the most important implications of its work, for it is very much a part of the political process.
1 In United States v. Arizona, 39 Law Week 4027 (1970)Google Scholar the Court held the Voting Rights Act Amendments of 1970 constitutional with respect to congressional and presidential elections and unconstitutional with respect to local and state elections. The Court ruled that the fixing of qualifications for voting in the latter was the prerogative of the state governments.
2 Contributions from both sources have produced a vast literature about the Court. (In the following* signifies that the book is in the Cambridge University Library,** signifies that it is in the Squire Law Library.) A useful casebook which contains a copy of the Constitution of the United States is Tresolini, Rocco J., American Constitutional Law,* 2nd ed. (New York, 1965).Google Scholar Other casebooks are: Thomas, I. Emerson, et al., Political and Civil Rights in the United States** (Boston, 1967)Google Scholar, two volumes with supplements through 1969; Konvitz, Milton R., Bill of Rights Reader** (Ithaca, New York, 1965)Google Scholar; Pritchett, Herman C., American Constitutional Issues* (New York, 1962).Google Scholar
A representative bibliography includes: Abraham, Henry J., Freedom and the Court* (New York, 1967)Google Scholar;Corwin, Edward S., The Constitution and What it Means Today,* 12th ed. (Princeton, 1958)Google Scholar; Freund, Paul A., On Understanding the Supreme Court* (Boston, 1951)Google Scholar, and On Law and Justice* (Cambridge, Mass., 1968)Google Scholar; Heller, Francis H., Introduction to American Constitutional Law** (New York, 1952)Google Scholar; Jackson, Robert H., The Supreme Court in the American System of Government* (Cambridge, Mass., 1955)Google Scholar; Kauper, Paul G., Civil Liberties and the Constitution** (Ann Arbor, 1962)Google Scholar; Kelly, Alfred H. and Harbison, Winfred A., The American Constitution,* 3rd ed. (New York, 1963)Google Scholar; Mason, Alpheus T., The Supreme Court: Palladium of Freedom* (Ann Arbor, 1962)Google Scholar; McCloskey, Robert, The American Supreme Court** (Chicago, 1960)Google Scholar, and Essays in Constitutional Law** (New York, 1957)Google Scholar; Murphy, Walter F., Elements of Judicial Strategy* (Chicago, 1964)Google Scholar; Pritchett, Herman C., The American Constitution* (New York, 1959)Google Scholar; Rostow, Eugene V., The Sovereign Prerogative* (New Haven, 1962)Google Scholar; Ramaswamy, M., The Creative Role of the Supreme Court of the United States* (Stanford, 1956)Google Scholar; Glendon, Schubert ed., Judicial Decision Making* (New York, 1963)Google Scholar; Shapiro, Martin, Law and Politics in the Supreme Court* (New York, 1964)Google Scholar; Schwartz, Bernard, American Constitutional Law* (Cambridge, 1955)CrossRefGoogle Scholar, and A Commentary on the Constitution of the United States** (New York, 1963–65)Google Scholar, three volumes; Sutherland, Arthur E., Constitutionalism in America** (New York, 1965)Google Scholar, with text of the Declaration of Independence; Swisher, Carl B., The Supreme Court in Modern Role* (New York, 1958).Google Scholar
3 See notes 23 and 24, infra, and accompanying text.
4 Article III, Section 2, confers appellate jurisdiction on the Supreme Court “… with such Exceptions, and under such Regulations as the Congress shall make.” Congress thus, by simple majority vote, may remove from the jurisdiction of the Court an entire category of cases or a specific case. However, this has been done very rarely and it has been argued that Congressional power to make exceptions cannot be used to frustrate the guarantees in the Bill of Rights. See Berger, Raoul, Congress v. The Supreme Court (Cambridge, Mass., 1969)CrossRefGoogle Scholar, Chapter 9.
5 Some supporters of the nominee, U.S. District Court Judge Carswell, did not deny the accusation of mediocrity; they simply pointed out that there were many mediocre people in the nation and that they too deserved to be represented on the Court. The notion that the Court should be “representative” of the nation politically, ethnically and geographically is well entrenched; when a vacancy occurs, it may be referred to as the “Jewish seat” or the “Catholic seat.” However, the Carswell supporters appeared to be adding a new dimension of representation.
6 In Williams v. Rhodes, 393 U.S. 23 (1968)Google Scholar the Court held for petitioners, finding that the Ohio regulations excluding minor parties from the ballot were a denial of equal protection of the laws as prescribed by the Fourteenth Amendment to the United States Constitution.
7 See Warren, Charles, The Supreme Court in United States History, rev. ed. (Boston, 1937)Google Scholar, Volume I, 1789–1835, Volume II, 1836–1918; Haines, Charles G., The Role of the Supreme Court in American Government and Politics 1789–1835 (Berkeley, 1944)Google Scholar; Haines, Charles G. and Sherwood, Foster H., The Role of the Supreme Court in American Government and Politics 1835–1864 (Berkeley, 1957)Google Scholar; Crosskey, William W., Politics and the Constitution in the History of the United States (Chicago, 1953)Google Scholar, two volumes; Mason, Alpheus Thomas, The Supreme Court from Taft to Warren (Baton Rouge, 1968)Google Scholar; Rodell, Fred, Nine Men: A Political History of the Supreme Court from 1790–1955 (New York, 1955).Google Scholar
8 In the past 15 years the Court has expanded and reinforced the rights of criminal defendants, often with the result that the convictions of obviously guilty persons are overturned because of what seems to the public an irrelevant technicality. The Court has held that the Sixth Amendment right to counsel requires that free legal counsel must be provided for all indigent criminal defendants: Gideon v. Wainwright, 372 U.S. 335 (1963).Google Scholar Evidence secured in violation of the Fourth Amendment prohibition of unreasonable search and seizure has been held inadmissible in all criminal trials: Mapp v. Ohio, 367 U.S. 643 (1961).Google Scholar The amendment also has been held to provide a zone of protection around the individual against electronic eavesdropping by police: Katz v. United States, 389 U.S. 347 (1967).Google Scholar The Fifth Amendment privilege against self-incrimination has been held to invalidate any confessions given before the suspect was advised of his right to remain silent: Miranda v. Arizona, 384 U.S. 436 (1966).Google Scholar The Court has held the Sixth Amendment to require that defendants accused of serious crimes have the right to a jury trial: Duncan v. Louisiana, 391 U.S. 145 (1968).Google Scholar In Baldwin v. New York, 26 L. Ed. 2d 437 (1970)Google Scholar a possible sentence of six months was held to “make the crime serious.” The Fifth Amendment prohibition against double jeopardy has been held binding on state courts as well as federal: Benton v. Maryland, 395 U.S. 784 (1969).Google Scholar The Court also has made it virtually impossible to confer the death sentence by stringently enforcing the concept of due process in capital cases. In Witherspoon v. Illinois, 391 U.S. 510 (1968)Google Scholar the Court held that due process informed by the Sixth Amendment required that those opposed to capital punishment not be excluded from serving as jurors in capital cases.
9 The Court has ruled that Bible reading or recitation of prayers in public schools violates the First Amendment prohibition of an establishment of religion: Engel v. Vitale, 370 U.S. 421 (1962)Google Scholar; Abington School District v. Schempp, 374 U.S. 203 (1963).Google Scholar
10 In Stanley v. Georgia, 394 U.S. 557 (1969)Google Scholar the Court decided that the freedom of speech clause of the First Amendment prohibits making the mere private possession of obscene material a crime.
11 Two major pieces of legislation that were invalidated were the Agricultural Adjustment Act of 1933, held unconstitutional in United States v. Butler, 297 U.S. 1 (1936)Google Scholar, and the National Industrial Recovery Act, held unconstitutional in Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935)Google Scholar.
12 The constitutional authority of the President to commit troops to Vietnam absent a Congressional declaration of war has been questioned in some quarters. Considering that the war had been in progress for more than five years before the objection was raised, that is an exception which proves the rule.
13 Article III, section 1, creates the Supreme Court and provides for “such inferior Courts as the Congress may from time to time ordain and establish.” The remainder of the federal court system was created by Congress in the Judiciary Act of 1789 and has been maintained ever since. However, Congress may, whenever it wishes, abolish every federal court except the Supreme Court, subject to the possible exception that Congress cannot use that power to deprive persons of their constitutional rights.
Today there are 91 district courts, at least one in each state, and 11 circuit courts of appeal, each having jurisdiction over a group of states. The Supreme Court hears cases on appeal from lower federal courts and from the highest courts of the state judicial systems. The Supreme Court has original jurisdiction under Article III, section 2, only in cases involving “… Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party …”
14 The Federalist Papers, Clinton, Rossiter, ed. (New York, 1964)Google Scholar, No. 78. The Federalist is a collection of articles written by Alexander Hamilton, James Madison and John Jay, which were published in newspapers in New York from 1787 to 1788 under a pseudonym.
15 Marbury v. Madison, 1 Cranch 137 (1803).
16 At the Constitutional Convention, “the question [of judicial review] did not come up.” Farrand, Max, The Framing of the Constitution (New Haven, 1963), p. 156.Google Scholar See also Berger, op. cit.; Corwin, Edward S., The Doctrine of Judicial Review (Princeton, 1914)Google Scholar; Haines, Charles G., The American Doctrine of Judicial Supremacy, 2nd ed. (Berkeley, 1932).Google Scholar
17 The Court delineated the President's authority to dismiss presidential appointees who had been confirmed in office by the Senate in Myers v. United States, 272 U.S. 52 (1926)Google Scholar, Humphrey's Executor v. United States, 295 U.S. 602 (1935)Google Scholar, and Wiener v. United States, 357 U.S. 349 (1958).Google Scholar
18 The Court established federal supremacy over interstate commerce in Gibbons v. Ogden, 9 Wheat. 1 (1824), over matters of taxation in McCulloch v. Maryland, 4 Wheat. 316 (1819) and over the conduct of foreign affairs in Missouri v. Holland, 252 U.S. 416 (1920).Google Scholar See Schmidhauser, John R., The Supreme Court as Final Arbiter in Federal-State Relations 1789–1957 (Chapel Hill, 1958).Google Scholar
19 Justices of the Supreme Court are nominated by the President, confirmed by a majority vote of the Senate, and serve “… during good Behaviour” (Article III, section 1). A justice's salary, $60,000 (£25,000) annually, may not be reduced during his term of office. Like other civil officers of the federal government he may be impeached by the House of Representatives and convicted and removed from office by a two-thirds vote of the Senate for “treason, bribery, or other high crimes and misdemeanours.” Only one justice has been impeached, Samuel Chase in 1804, but he was not convicted. Recently a move to impeach Justice William O. Douglas for his speeches, writings and business affairs failed in the House. Public pressure rather than formal impeachment forced the resignation of Justice Abe Fortas in 1969 because of payments he received from a family foundation of a man convicted of securities fraud.
20 Alexis, De Tocqueville, Democracy in America (Lawrence trans.), 1966, pp. 324–333.Google Scholar De Tocqueville, a French aristocrat, visited America in 1831 and published his observations in 1835.
21 In the most commonly used method, a proposed amendment must be approved by a two-thirds majority of both houses of Congress and then by the legislatures of three-fourths of the states. It is a feat that is out of the question in all but the rarest moments of political consensus and, aside from the initial 10 amendments adopted as a package in the early days of the republic, has been accomplished only 15 times.
22 Kurland, Philip B., “Earl Warren, the ‘Warren Court,’ and the Warren Myths,” 67 Michigan Law Review 353 (1968).CrossRefGoogle Scholar
23 Brown v. Board of Education, 347 U.S. 483 (1954)Google Scholar held compulsory school segregation laws unconstitutional. Jones v. Mayer, 392 U.S. 409 (1968)Google Scholar held private racial discrimination in housing to be prohibited.
24 Baker v. Carr, 369 U.S. 186 (1962)Google Scholar held inequality of population among electoral constituencies a justiciable issue. In Wesberry v. Sanders, 376 U.S. 1 (1964)Google Scholar inequality among Congressional constituencies was held unconstitutional. The principle of “one man, one vote” was extended subsequently to state legislative constituencies in Reynolds v. Sims, 377 U.S. 533 (1964)Google Scholar and to local government constituencies in Avery v. Midland County, Texas, 390 U.S. 474 (1968).Google Scholar
25 In Shapiro v. Thompson, 394 U.S. 618 (1969)Google Scholar residence requirements for welfare recipients were held a denial of equal protection of the laws. Goldberg v. Kelly, 25 L. Ed. 2d 287 (1970)Google Scholar held the due process clause of the Fourteenth Amendment requires that welfare benefits recipients be given a hearing before the authorities terminate payments. Sniadach v. Family Finance Corp., 395 U.S. 337 (1969)Google Scholar held that the due process clause prohibits deprivation of wages in garnishment proceedings without first affording the wage earner an opportunity for a hearing. In addition the many decisions reinforcing the rights of accused persons have benefited the poor especially, because, having neither the means to hire lawyers nor the education to make them aware of their rights, the poor are more easily victimised by unfair police practices.
26 Op. cit. In his dissenting opinion in Baker v. Carr, 369 U.S. 186 (1962)Google Scholar Mr. Justice Frankfurter observed: “The Court's authority—possessed neither of the purse nor the sword—ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court's complete detachment, in fact as in appearance, from political entanglements and by abstension from injecting itself into the clash of political forces in political settlements.”
27 Burns, James Macgregor, The Deadlock of Democracy (Englewood Cliffs, N.J., 1963).Google Scholar
28 Ironically, the Jones decision resurrected a statute passed by a Congress sitting more than a century earlier, the Civil Rights Act of 1866, and gave it precedence over an act passed while the Court was considering its judgment. To do this, the Court had to embark upon a tortuous reasoning exercise, holding that the Thirteenth Amendment, which abolished slavery, authorised legislation prohibiting private acts of racial discrimination. It was almost the only time since the immediate post-Civil War era that any attention had been paid to the Amendment.
29 Bickel, Alexander M., The Least Dangerous Branch (Indianapolis, 1962).Google Scholar
30 The same may be said for the term “strict constructionist,” which President Nixon recently used to describe the men he was seeking to appoint to the Court; of course, every American jurist claims to construe the Constitution “strictly.”
31 “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” Op. cit., p. 333. In contemporary politics, when legislative lobbying fails, a pressure group routinely turns to a constitutional law suit. Cf. Vose, Clement E., “Litigation as a Form of Pressure Group Activity,” 319 Annals of the American Academy of Political and Social Science 22 (1958).CrossRefGoogle Scholar
32 The Fourteenth Amendment, which has been such a fertile source of judicial creativity, reads, in part: “… nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” By a process known as “incorporation” the amendment has been construed to make enforceable against state governments virtually all of the specific guarantees of individual liberties contained in the first 10 amendments, the so-called Bill of Rights. By itself the Bill of Rights ostensibly limits only the federal government.
33 Colegrove v. Green, 328 U.S. 549 (1946)Google Scholar, prevailing opinion.
34 Kirkpatrick v. Preisler, 394 U.S. 526 (1969).Google Scholar When the case was decided, many states already had redrawn their constituency boundaries, but the more exacting standards laid down in the opinion required the mapping of constituencies to begin over again. Previous cases had not decided whether even a minimal disparity in population of, for instance, 1 per cent. would be permissible if necessary to achieve other desiderata in districting such as compactness of constituencies and preservation of existing political boundaries. In Kirkpatrick it was held that none of these otherwise worthy goals would justify deviating from a good faith effort to make the constituencies equal in population. The decision occasioned some controversy about whether or not it would lead to an increase in gerrymandering since, it was argued, the decision removed the other districting criteria which served to limit manipulation of constituency boundaries for party advantage. For a detailed discussion of the practical effects of the reapportionment cases see Dixon, Robert, Jr., Democratic Representation: Reapportionment in Law and Politics (New York, 1968).Google Scholar
35 See Mr. Justice Black's emphasis of this rationale in Wesberry, majority opinion. For an effective statement of the contrary view, see Mr. Justice Frankfurter's dissenting opinion in Baker. References in note 24, supra.
36 The Fourteenth Amendment was held to prohibit residential segregation ordinances in Buchanan v. Warley, 245 U.S. 60 (1917)Google Scholar and restrictive covenants in private housing deeds to prevent resale or rental to non-whites in Shelley v. Kraemer, 334 U.S. 1 (1948).Google Scholar See Greenberg, Jack, Race Relations and American Law (New York, 1959)Google Scholar, Vose, Clement E., Caucasians Only: The Supreme Court, the NAACP, and the Restrictive Covenant Cases (Berkeley, 1959)Google Scholar and Donald, B. King, Charles, W. Quick (eds.), Legal Aspects of the Civil Rights Movement (Detroit, 1965).Google Scholar
37 See note 8, supra.
38 Cox, Archibald, The Warren Court: Constitutional Decision as an Instrument of Reform (Cambridge, Mass., 1968), p. 22.CrossRefGoogle Scholar Cox was appointed Solicitor General by President Kennedy.
39 The remark is attributed to Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941.
40 See the classic essay, Corwin, Edward S., “The “Higher Law’ Background Of American Constitutional Law,” 42 Harvard Law Review 149 and 365 (1928–29).CrossRefGoogle Scholar
41 Kurland, Philip B., “Toward a Political Supreme Court,” 37 University of Chicago Law Review 19 (1969).CrossRefGoogle Scholar
42 Ibid., p. 35.
43 Plessy v. Ferguson, 163 U.S. 537 (1896). The decision enunciated the doctrine that racially “separate but equal” facilities were constitutional. Brown held that “separate but equal” schools are inherently unequal.
44 Many justices have surprised the Presidents who appointed them by changing their views after joining the Court. Earl Warren, the liberal Chief Justice, had been a conservative governor of California. President Eisenhower is reputed to have remarked that appointing Chief Justice Warren was “the biggest damnfool mistake 1 ever made.”
45 Powell v. McCormack, 395 U.S. 486 (1969).Google Scholar
46 See note 18, supra.
47 See Wickard v. Filburn, 317 U.S. 111 (1942)Google Scholar upholding the Agricultural Adjustment Act of 1938; United States v. Darby, 312 U.S. 100 (1941)Google Scholar upholding the Fair Labor Standards Act of 1938; National Labor Relations Board v. Jones and Laughlin Steel Corp., 301 U.S. 1 (1937)Google Scholar upholding the National Labor Relations Act of 1935.