I. Introduction: From Roe to Webster

On January 22, 1973, the U.S. Supreme Court made abortion legal in the United States with its decision in Roe v. Wade. The Court said that a state's interest in regulating abortion to protect the life of a fetus can only override a woman's fundamental right to privacy when the fetus becomes viable. 

Sixteen years later, in Webster v. Reproductive Health Services, the Supreme Court retreated from Roe and
dramatically diminished a woman's right to have an abortion. The Court upheld a Missouri law that barred the use of public monies and facilities to perform abortions and required physicians to test for fetal viability at 20 weeks.

The Constitution was not amended in the years between Roe and Webster, yet the interpretation of the constitutional
standing of privacy and the right of the states to regulate abortion changed substantially. 

To understand this transformation in constitutional interpretation, it is important to appreciate the major transformations that occurred in American politics in the decade and a half following Roe. Most important was the rise of conservatism and the political fortunes of the Republican party, and the decline of liberalism and the Democratic party. This transformation affected each of the branches of the federal government, including the Supreme Court.

This story tells us many things about the Supreme Court. Similar to the president and the Congress, the Court makes
decisions that have important consequences for the American people. In contrast to the president and the Congress, the Court does not pass new laws but interprets the meaning of the law. In so doing, however, the Court cannot help but make law.

This story also shows that the Supreme Court is embedded in a rich governmental, political, and structural environment that shapes its behavior. The Court, therefore, is not completely above the fray or immune to changes in the political environment as many would like to think.


II. The Structural Context of Court Behavior

A. Constitutional Powers

The Constitution speaks only briefly about the judicial branch and doesn't provide much guidance about what it is
supposed to do or how it is supposed to go about its job. The Constitution says little about the powers of the judicial
branch in relation to the other two federal branches or abo utits responsibilities in the area of constitutional interpretation.

The most interesting silence in the Constitution is the omission of any explicit mention of judicial review, which is
the power of the Court to declare state and federal laws null and void when they conflict with the Constitution. Debate
has raged for years over the question of whether the framers intended for the Court to have this power. Although the
authors of the Constitution apparently believed that the Constitution ought to prevail when other laws were in
conflict with it, it is not clear that the framers expected the Court to have the power of judicial review.

Chief Justice John Marshall boldly claimed the power of judicial review for the Supreme Court in the case of Marbury
v. Madison, decided in 1803. On the surface, the decision was an act of great modesty. It suggested that the Court
could not force the action of an executive branch official, in this case the action of the Secretary of State to deliver
a commission to William Marbury. The Court ruled that Congress had erred in the Judiciary Act of 1789 by giving the
Supreme Court too much power. Beneath the surface, however, was a less modest act: the claim that judicial review was the province of the judicial branch alone.

Judicial review raises questions about democracy because it involves the right of a body shielded from direct
accountability to the people to set aside the actions of government bodies whose members are directly elected. Some
observers believe that judicial review is the only way to protect the rights of minorities and preserve the rules of
the democratic process. In contrast, other observers believe that judicial review has no place in a democratic society.

B. Structural Change and Constitutional Interpretation

Scholars generally identify three periods in the history of constitutional law in the United States. The first period
extended from Chief Justice Marshall to the Civil War. A number of decisions of the Marshall Court in particular
enhanced national power over the states.

Gibbons v. Ogden (1824) helped create the foundation for a national economy in which commerce could flow freely between the states. According to the Court, power over interstate commerce was entirely in the hands of the national
government, and no state could interfere with it by imposing taxes or tariffs.

In Dartmouth College v. Woodward (1819), the Court ruled that a corporation was considered a person under the law and as with any other citizen, the terms of its contract could not be impaired or changed by the state. This decision reassured business leaders that corporations would be largely free from state regulation.

In the Dred Scott case, the Court declared the Missouri Compromise unconstitutional and defined slaves as property
without rights as individuals. In general, the Court during this period interpreted the Constitution to maximize the
protection of property rights and promote nationalism.

During the second period, which lasted from the late nineteenth to the early twentieth century, the Supreme Court focused on the role of government in a burgeoning economy dominated by business corporations. Initially, the Court took the position that the Fourteenth Amendment protected corporations against regulation by state and federal governments.

The Supreme Court became the principle ally of business, overturning efforts by state and federal governments to provide welfare for the poor; regulate manufacturing monopolies; adopt an income tax; regulate interstate railroad rates; provide scholarships to students; regulate wages, hours, and working conditions; and protect consumers against
unsafe or unhealthy products.

The business-Supreme Court alliance lasted until the Great Depression. The New Deal reflected a new national consensus about the need for a greatly expanded federal government with a new set of responsibilities: to manage the economy; to provide a safety net for the poor, the unemployed, and the elderly; to support collective bargaining arrangements between labor and management; and to regulate business in the public interest. Although the Supreme Court initially opposed these programs, it reversed itself in 1937.

When the third period of constitutional law began at the end of World War II, three fundamental issues of American
constitutional law were essentially settled: the relationship of the states to the nation, the nature of private property,
and the relationship between government and the national economy.

After World War II, the Court turned its attention to the relationship between the individual and the government. The
Court, especially during the tenure of Chief Justice Earl Warren, rendered a series of decisions that expanded protection for free expression and association, religious expression, fair trials, and civil rights for minorities. In the process, the Court ruled that most of the provisions of the Bill of Rights applied to the states.


III. The Federal Court System Organization and Jurisdiction

The United States has a federal court system, with one court system for the national government and one in each of the states. Each state has its own system of courts adjudicating cases on the basis of its own constitution, statutes, and administrative rules. Most court cases in the U.S. (roughly 99 percent) are handled by state courts. The national court system is headed by the U.S. Supreme Court, which is the only court mentioned in the Constitution. The framers left the task of establishing inferior federal courts to Congress.

A. Federal District Courts

Most cases in the federal court system are first heard in one of the 94 district courts. District courts are courts of original jurisdiction, that is, they do not hear appeals from other courts. Most of the business of the federal courts takes place at this level.

B. U.S. Courts of Appeal

The United States is divided into twelve geographical jurisdictions called circuits. A U.S. court of appeals presides in each circuit, hearing appeals from the district courts. There is also a thirteenth circuit court, called the U.S. Court of Appeals for the Federal Circuit, located in Washington, DC, which hears cases on patents and government contracts. Cases cannot originate in these courts but must come form other courts to them. Because they exist only to hear appeals, we refer to them as appellate courts. 

Once appellate decisions are published, they stand as precedents that guide the decision of other judges. Although judges do not slavishly follow precedent, they move away from precedent only when necessary and only in very small steps. This doctrine of closely following precedent as the basis for legal reasoning is known as stare decisis.

C. The Supreme Court

The Supreme Court is both a court of original jurisdiction and an appellate court. Disputes involving ambassadors and other diplomatic personnel, two or more states, the federa lgovernment and a state, or a state and a citizen from another state start in the Supreme Court rather than in some other court.

The Supreme Court serves as an appellate court for the federal appeals courts and for the highest courts of each of the states. Certain disputes must be accepted on appeal by the Supreme Court for consideration. These disputes include those in which a state or a federal law has been declared unconstitutional, or disputes in which the highest state court has denied a claim that a state law violates federal law or the Constitution. As the highest appellate court in the federal court system, the decisions and opinions of the Supreme Court become the main precedents on federal and constitutional questions for courts at all other levels of jurisdiction.


IV. Appointment to the Federal Bench

A. Who Are They?

Although appointees to the federal bench are lawyers by custom, they need not have judicial experience. Almost half
of all Supreme Court justices during this century had no prior experience as judges. Because federal judges are lawyers, they tend to come from backgrounds that are more privileged than the American norm. For the most part, they are white, male, Protestants from upper-income or upper- middle-class families, who attended the most selective and expensive undergraduate and graduate institutions.

The representativeness of judicial appointments at the circuit and district court levels is better, but still a long way from reflecting the composition of the legal profession, much less the American people as a whole. To those who believe that judges bring their personal outlooks to bear when they are deciding cases, the significantly unrepresentative composition of the federal judiciary may be cause for concern.

B. The Appointment Process

Federal judges assume office after they have been nominated by the president and approved by the Senate. In some
respects, all presidents approach the appointment process in the same way. The president delegates the task of
identifying judicial candidates to one or more senior White House staff members and the attorney general. The FBI
conducts background checks of the leading candidates, and the American Bar Association is asked to evaluate their
qualifications.

In making judicial appointments, presidents take many things into consideration besides merit. No president wants a
nomination rejected by the Senate, so he and his advisors consult with key senators, especially those on the Judiciary
Committee, before nominations are forwarded.

Nominations for district court judgeships are subject to what is called senatorial courtesy, that is, the right of the
senior senator from the president's party in the state where the district court is located to approve the nominee.

Though presidents must be concerned about the merit of their candidates and their acceptability in the Senate, they also try by their appointments to make their mark on the future. For example, many presidents have been most interested in nominating judges who shared their ideological and programmatic commitments.

Franklin Roosevelt tried to fill the courts with judges who favored the New Deal. Ronald Reagan favored conservatives who were committed to rolling back affirmative action, abortion rights, protection for criminal defendants, and broad claims of standing in environmental cases.


V. The Supreme Court in Action

A. Norms of Operation

The Supreme Court is a tradition-bound institution defined by long-standing rituals and norms.

One norm is secrecy, which keeps conflict between justices out of the public eye and elevates the stature of the Court.
While meeting in conference to argue and decide cases, the justices are alone, without secretaries or clerks.

Courtesy is another norm. Though justices may sometimes express their displeasure and distaste for each other in
private, in public they treat each other with great formality and respect.

Seniority is another important norm. Seniority determines the assignment of office space, seating arrangements in open
court, order of speaking in conference, and order of voting.

Finally, the justices are expected to stick closely to precedent when reaching a decision. When the Court departs from precedent, it is essentially overruling its own past actions, exercising judicial review of itself. In most cases, departure from precedent comes in small steps taken over many years.

B. Controlling the Agenda

The Court has a number of screening mechanisms to control its agenda and focus its attention on cases that involve
important federal or constitutional questions. Several technical rules help keep the work load manageable.

Cases must be real and adverse, meaning that they must involve a real dispute between two parties. Parties in a case must have standing, meaning that they must have a real and direct interest in the issues that are raised.

Cases must also be ripe, meaning that all other avenues of appeal have been exhausted and that injury has already taken place. Appeals must also be filed within a specific time limit, paperwork must be proper and complete, and a filing fee of $200 must also be paid. The fee can be waived if a petitioner is indigent and files an affidavit in forma pauperis (in the manner of a pauper).

The most powerful tool that the Court has for controlling its own agenda is the power to grant or not to grant a writ of
certiorari. A grant of cert is a decision of the Court that an appellate case raises an important federal or constitutional issue that it is prepared to consider.

Under the rule of four, petitions are granted cert if at least four justices vote in favor. There are several reasons why a petition may not command four votes, even if the case involves important constitutional issues: it may involve a particularly controversial issue that the Court would like to avoid, or the Court may not yet have developed a solid majority and wishes to avoid a split decision.

C. Deciding Cases

In about 25 percent of the cases heard by the Supreme Court, the issues are clear-cut and the justices are so united that they render a decision without hearing oral arguments. They schedule the remaining 150 or so cases for oral argument. The Court alerts the lawyers on each side as to the key issues that the justices wish to consider, and invites new briefs. Other parties interested in the case may submit briefs as well (known as friend of the court or amicus curiae briefs). Each case is argued for about an hour, with one- half hour given to each side in the dispute.

After hearing oral arguments and reading the briefs in the case, the justices meet in conference to reach a decision. The custom in conference is for each justice to state his or her position on the case, starting with the chief justice and moving through the ranks in order of seniority. Political scientists have tried to determine what factors are most mportant in predicting how justices will vote. About all that one can say, however, is that the justices form relatively stable voting blocks that make Court decisions on a wide range of issues relatively predictable.

The vote in conference is not final. The justices have an opportunity to change their vote in response to the opinion
supporting the majority decision. The opinion is a statement of the legal reasoning that supports the decision of the Court. There are three kinds of opinions. The opinion of the Court is the opinion of the majority. A concurring opinion is the opinion of a justice or justices who support the majority decision but have different legal reasons for doing so. A dissenting opinion presents the reasoning of the minority.

The chief justice assigns the majority opinion if he votes with the majority in conference. He can write it himself or assign it to any justice in the majority. If the chief justice votes with the minority, the most senior member voting with the majority makes the assignment.

Most opinions go through numerous revisions, during which time a considerable amount of bargaining goes on. In this
process, the members of the Court function like nine independent law firms, drafting opinions and negotiating compromises. The justices don't take a final vote until the opinion is complete.

D. Key Personnel
 
The formal powers of the office of chief justice are not impressive. Whatever power a chief justice has is based on a
mix of leadership abilities, the prestige of the office derived from the actions of past chief justices, and a set of norms that make the chief first among equals. The chief justice also has certain administrative responsibilities. He is in charge of the management of the Supreme Court building, chair of the U.S. Judicial Conference, and is chair of the Federal Judicial Center.

The solicitor general is appointed by the president to represent the U.S. government before the Supreme Court. He and his staff decide which cases to appeal from lower courts and which cases between private parties or the states to join on an amicus curiae basis. Political scientists believe that the Court pays close attention to the position of the solicitor general when deciding whether to grant certiorari because, being the representative of the president, he signals what the administration considers to be most important.

Supreme Court clerks are a select group of young lawyers recruited from among recent graduates of the best law schools in the United States. Their main role is to assist the justices in the preparation of cases. Clerks prepare memoranda on cases being considered for certiorari, screen petitions for in forma pauperis filings, do legal research, and write initial drafts of opinions. Because the work load of the Court has increased, clerks have assumed more and more responsibility for drafting and revising opinions. Nonetheless, each justice has the final word.


VI. The Supreme Court as a National Policymaker

People often say that the Court should not make policy but should only settle disputes. But, because the disputes it settles involve contentious public issues and fundamental questions about the meaning of our constitutional rules, the Court can't help but make public policy. The fact that decisions are not simply handed down but come with an opinion attached for the purpose of guiding the actions of other courts, litigants, and public officials is another demonstration that the Court has a policymaking role. 

A. The Debate over Judicial Activism

Many people think that the Supreme Court is too vigorous in its policymaking role. The Court is indeed more active now than in the past. Whether this is inappropriate depends on one's view of the role of the judiciary in a democracy. The Supreme Court is changing in important ways. During the twentieth century, the Court has been more willing to find the actions of the states and the other branches of the federal government unconstitutional. Although adherence to precedent is one of the traditional norms that guides judicial decision making, the Court is not as reluctant to overturn previous Court decisions as in the past.

Critics claim that the Court increasingly is taking on matters that are political and that are best left to the other branches of government. In response, defenders of the Court argue that when such basic constitutional rights as equality of citizenship are at peril, the Court is obligated to protect those rights, no matter what other government bodies may chose to do.

The activity which has generated the most criticism in recent years derives from the Court's increased tendency to impose broad remedies. A remedy is what a court determines must be done to rectify a wrong. Some of the most controversial of these remedies include court orders requiring states to build more prison space and mandating that school districts bus students to achieve racial balance.

Much of the debate about the role of the Court centers on the issue of original intention. Advocates of original intention and strict construction believe that the Court must be guided by the original intent of the framers and the words found in the Constitution. In contrast, proponents of loose construction believe that the intentions of the Founders are impossible to determine and unduly constricting. In their view, jurists must try to reconcile the fundamental principles of the Constitution with changing conditions in the United States.


VII. The Courts and Democracy
The Political and Governmental Context

A. Governmental Influence on the Court

The Court must coexist with other governmental bodies that have their own powers, interests, constituencies, and visions of the public good. Recognizing this, the Court usually tries to stay somewhere near the boundaries of what is acceptable to other political actors. It does so for a number of reasons.

First, the Court lacks the power to force others to comply with its decisions. It can only hope that respect for the law and the Court will be enough to cause government officials to do what it has mandated in a decision. If the Court fails to gain voluntary compliance, it risks a serious erosion in its influence, for it then appears weak and ineffectual.  Second, both the president and Congress have certain constitutional powers that give them some degree of influence over the Court. In addition to the Court's dependence  on thepresident to carry out its decisions, the president influences the direction of the Court through his power of appointment. Congress retains the power to change the size, organization, and jurisdiction of the federal courts. The Senate also plays a role in the appointment process and can convey its views to the Court during the course of confirmation hearings.

B. Political Influences on the Court

Interest groups, social movements, and the public not only indirectly influence the Court through the president and Congress but have direct influence as well. An important political tactic of interest groups and social movements is the test case, which is an action brought by a group that is designed to challenge the constitutionality of a law or an action by government.

Groups wishing to force a court determination on an issue that is important to them will try to find a person on whose
behalf they can bring a suit. Test cases also can be created by purposely breaking a law that an individual or group
believes to be unconstitutional so that it can be tested in the courts.

Many test cases take the form of class action suits. These are suits brought by an individual, not only for himself or
herself, but also for a class of people in a similar situation. Interest groups often get involved in suits, even when they are not party to the case, by filing amicus curiae briefs. Amicus briefs set out the group's position on the constitutional issues or discuss some of the more important consequences of deciding the case one way or the other. In a sense, this activity is a form of lobbying.

The Court does not usually stray far from the opinions of elites and the public. Social and economic elites bring their influence to bear in a number of ways. Their influence is substantial in the media, the interest group system, party politics, and elections at all levels. It follows, then, that elites will play a substantial role in the thinking of presidents and members of Congress as they, in turn, deal with the Court.

In addition to this powerful but indirect influence, the Court is also shaped by developments on issues and doctrine within the legal profession as these are expressed by bar associations, law journals, and law schools. Elites act even more directly on the Court when the interest groups and the associations that they run bring suits in the federal courts or file amicus briefs in disputes that are of interest to them.

Public opinion also influences the Court, but the extent of its effects is unclear. Some research shows that the Court conforms to public opinion about as much as the president and Congress do. In contrast, other research shows public support for Court action only about one-third of the time.

C. Antidemocratic Aspects of the Court

Democracy requires popular sovereignty. We have seen that popular preferences play a larger role in the actions of the Court than might appear to be the case at first glance. Court decisions are consistent with the opinions of the public in a substantial proportion of cases. However, the relationship is far from perfect. The Court's relationship to public opinion is problematic in democratic terms. Not only does it fail to conform to public opinion much of the time, but it often lags behind popular views, even when it eventually comes into line with public opinion.

The public shapes the Court indirectly through elected institutions such as Congress and the president. However, two factors make the influence of the public less than it might be. First, Congress and the president are themselves far from perfect democratic instruments of the people. Second, though the president and Congress constrain its behavior, the Court is able to go its own way to a considerable degree.

Democracy also requires liberty and political equality. To many people, the protection of freedom and equality is the primary mission of the Court. Although the court plays an important role in the protection and extension of civil liberties and citizenship rights, its actions over the long course of history are not entirely praiseworthy. By and large, the Court generally goes along with government efforts to silence dissident voices and to keep minorities from enjoying the full protection of the law.

D. Democracy and the Court Reconsidered

People disagree about what role the Court should play in a democracy. To the framers, who believed that popular democracy and liberty are contradictory, the appropriate role for the Court is that of protector of liberty against public opinion and the elected branches. They had in mind an institution that opposed popular sovereignty. Most Americans today think better of democracy than the framers did, so this openly antidemocratic conception of the Court's role is probably not as appealing as in the past.

Americans no doubt want the Court to champion liberty but in a broader context that includes an appreciation for popular sovereignty and political equality. From the point of view used throughout this book, the appropriate role for the Court is to encourage the play of popular sovereignty, political equality, and liberty in American politics.