The U.S. Constitution, the oldest written constitution, gives each branch of the federal government certain distinct powers, apportioned through a system of separation of powers and checks and balances in order to protect any one branch from abusing its authority. The nation is therefore said to have three separate governmental branches sharing power. Letâs take a few examples. Article I assigns all legislative powers to Congress; accordingly, Congress is responsible for passing all federal statutes and presenting them to the president for approval or disapproval. The president, who is ultimately responsible for enforcing the law, can nevertheless veto Congressâs proposed laws, but Congress can override a presidential veto, and the Supreme Court can still rule that the final statute is unconstitutional. The president is likewise assigned all federal executive authority under Article II, including that of commander in chief, but Congress must pass laws appropriating funding for the armed forces and is specifically delegated the power to declare war. As the ultimate check, the House of Representatives can impeach the president for treason, bribery, or other high crimes and misdemeanors, and the Senate can conduct a trial to remove him (or her) from office. As a final illustration, Article II stipulates that the president shall appoint all federal judges and numerous executive branch officials, but those appointments must undergo the advice and consent of the Senate, and the Supreme Court can rule that actions by presidential appointees violate the law.
This chapter introduces the Supreme Court and its exercise of power, beginning with five fundamental points. First, the Supreme Court is the final interpreter of the Constitutionânot the president or Congress (but see Blackstone 2013; Fisher 2019; Murphy 1986).1 Second, many of the Constitutionâs words, phrases, and concepts are ambiguous and undefined, so they frequently permit the justices ample leeway to make major decisions, sometimes unprecedented in nature, affecting the entire nation and millions of people. Third, the Constitution, other sources of law, judicial precedents, legal history, social norms, or a lawsuitâs facts frequently affect how the Supreme Court decides cases. Fourth, though, not only legal but also political considerations influence whether the Court accepts a case and how it is decided, including the justicesâ ideologies, strategies, and role conceptions (see, e.g., Epstein and Knight 1998; Gibson 1978; Segal and Spaeth 2002) as well as the possibility of external factors such as public opinion and interest groups (see, e.g., Caldeira and Wright 1988; Giles et al. 2008; Mishler and Sheehan 1993). Fifth, Supreme Court decisions have legal, political, economic, and social impacts on America (see, e.g., Canon and Johnson 1999; Rosenberg 2008). As you read the following pages, the importance of these points will become apparent.
Constitutional Basics
The federal courts are the focus of Article III of the Constitution, where Section 1 initially declares, âThe judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.â So the Supreme Court is the only court that Article III expressly creates; the Constitution leaves it up to Congress to create all inferior federal courts, which are known as the U.S. district courts and the U.S. courts of appeals. These inferior courts are, respectively, the federal courts of original jurisdiction and the initial courts of appellate jurisdiction in the vast majority of cases before an appeal can ordinarily be taken to the High Court. Section 1 continues by stating that federal judges shall hold office during good behavior. Because it is rare for a federal judge to be removed from office (only eight have been impeached and then convicted by the Senate), they often serve into their seventies or their eighties. Justice Oliver Wendell Holmes sat on the Supreme Court from 1902 to 1932âwhen he finally retired at the ripe old age of ninety.
Article III, Section 2 indicates that federal judges have the power to decide cases relating to the Constitution, federal law, and federal treaties. In broad terms, it also explains other cases to which the federal judicial power extendsââto all Cases affecting Ambassadors, other public Ministers and Consuls; to all Cases of admiralty and maritime Jurisdiction; to Controversies to which the United States shall be a Party; to Controversies between two or more States; between a State and Citizens of another State; between Citizens of different States; between Citizens of the same State claiming Lands under Grants of different States; and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.â Finally, Section 2 makes the distinction between the original and appellate jurisdiction of the High Court. Original jurisdiction means that a case can be initiated in the Supreme Court, which is rare, whereas appellate jurisdiction means that the justices may only hear appeals from the lower courts in those cases, which is typical.
Important Legal Concepts
Beyond being familiar with Article IIIâs major provisions, understanding the Supreme Courtâs power requires a grasp of other legal concepts, particularly judicial review, stare decisis, jurisdiction, justiciability, political questions, and standing to sue. Judicial reviewâby far the Courtâs most significant form of muscleâconcerns its long-standing ability to review legislative or executive actions and to declare them unconstitutional (see, e.g., Whittington 2009). Even so, the power of judicial review is not explicitly mentioned in Article III; rather, it is the creation of Chief Justice John Marshallâs constitutional imagination in Marbury v. Madison (1803), although its use may have been foreseen by Alexander Hamilton in Federalist No. 78. Second, stare decisis stands for the notion that courts should abide by precedents (prior judicial decisions) (see, e.g., Knight and Epstein 1996; Spaeth and Segal 1999). Yet although the justices ordinarily emphasize numerous precedents that arguably support their conclusions, scholars have challenged this assertion. Segal and Spaeth (2002, 81) conclude that precedent âprovides virtually no guide to the justicesâ decisions. All that one can say is that precedent is a matter of good form, rather than a limit on the operation of judicial policy preferences.â
Third, the Supreme Court must have jurisdiction to hear and decide a case, and the Courtâs jurisdiction is of two types. As noted above, the Courtâs original jurisdiction is narrow, but its appellate jurisdiction (which is defined by Congress) includes the much larger number and variety of cases that the Court hears on appeal from federal and state courts. Next, justiciability deals with the question of whether the Court is the proper branch of government to decide an issue. If most justices determine that a case presents a political question, the Court will announce that it is not the proper branch of government for a decisionâthat is, the case is said to be nonjusticiable (see Luther v. Borden [1849]; Colegrove v. Green [1946]). However, if the justices decide that a case does not involve a political question, then they are likely to rule that it is justiciable (see Baker v. Carr [1962]; Nixon v. United States [1993]). The sixth concept, standing to sue, concerns whether litigants meet the judicial rules that permit them to bring a matter to the Court, such as whether they are directly affected by the issue involved. If they lack standing, their appeal is denied (see, e.g., Flast v. Cohen [1968]; Massachusetts v. Environmental Protection Agency [2007]).
Other concepts such as adverseness, advisory opinions, ripeness, and mootness may also be relevant in a case. The Supreme Court requires adverseness (that a case involve genuinely opposing parties) before it will exercise power, so it will not decide friendly suits or hypothetical issues. Likewise, the justices will not issue advisory opinions on questions not raised in lawsuits, even at the request of executive or legislative branch officials. Nor will they decide an appeal unless it is ripeâthat is, it cannot be too early or too late for review. Further, if a case is brought too late because the issue has already been authoritatively decided, the justices will hold that it is moot in most circumstances. Yet only the Court decides whether it will exercise judicial power and how much. If the justices find that no case or controversy is presented or that an issue is moot, for instance, they are often choosing not to exercise power. If they say they have jurisdiction and that an issue is justiciable, however, they then routinely exercise their power by accepting the case for review.
Cases discussed in this chapter relate to whether the justices can or will exercise power by deciding an appeal. As a result, judicial review is a question in Marbury v. Madison; juri...