The United States Supreme Court: A political and legal analysis, second edition

The United States Supreme Court

The United States Supreme Court

A political and legal analysis

Second edition

Robert J. McKeever

Manchester University Press

Copyright © Robert J. McKeever 1997, 2016

The right of Robert J. McKeever to be identified as the author of this work has been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.

First edition published 1997 by Manchester University Press

This edition published 2016 by Manchester University Press

Altrincham Street, Manchester M1 7JA, UK

www.manchesteruniversitypress.co.uk

British Library Cataloguing-in-Publication Data

A catalogue record for this book is available from the British Library

Library of Congress Cataloging-in-Publication Data applied for

ISBN 978 1 5261 0732 9 hardback

ISBN 978 1 5261 0733 6 paperback

This edition first published 2016

The publisher has no responsibility for the persistence or accuracy of URLs for any external or third-party internet websites referred to in this book, and does not guarantee that any content on such websites is, or will remain, accurate or appropriate.

Typeset by Out of House Publishing

To the memory of my friend and mentor Richard Maidment. The spirit lives on.

Contents

List of figures

List of tables

List of boxes

Preface to the second edition

Preface to the first edition

1The Court’s contemporary agenda

2A historical overview

3Cases, decisions and judicial procedures

4Politics and judicial review

5Advice and consent: the politics of Supreme Court appointments

6The power of the Supreme Court: constraints, compliance and impact

7The role of the Supreme Court in American government and politics

Guide to further reading

Case index

General index

Figures

3.1The American court system

3.2Paths of appeals to the United States Supreme Court

Tables

3.1 The Supreme Court’s docket, 2009–13

3.2 Unanimity and dissent in Court decisions, 2009–13

5.1 Supreme Court nominations since 1968

5.2 Profile of the Justices of the Supreme Court, 2015

6.1 Public opinion poll data on support for Roe v. Wade

6.2 Public support for legal abortion under specific circumstances (%)

Boxes

1.1 Voting agreements and blocs on the Supreme Court, 2013–14 Term

4.1 The 1964 Civil Rights Act, Section 703(d)

4.2 Planned Parenthood v. Casey (1992): Opinion of Justices O’Connor, Kennedy and Souter

5.1 The Senate’s role in the appointments process: three Senators state differing views

5.2 The American Bar Association rates Supreme Court nominee Elena Kagan (2010)

5.3 A bitter Supreme Court battle: the nomination of Robert Bork, 1987

6.1 President Nixon’s message to Congress on busing, March 1972

6.2 Address by Attorney General Edwin Meese on constitutional interpretation, July 1985

6.3 Constitutional amendments reversing Supreme Court decisions

Preface to the second edition

In the years since the first edition of this book appeared, the United States Supreme Court has become even more important and controversial in American politics than ever. It has decided the outcome of the 2000 presidential election, challenged the President and Congress over the rights of detainees in Guantanamo Bay, declared a constitutional right to same-sex marriage and, by a whisker, preserved President Obama’s crowning achievement, the Patient Protection and Affordable Care Act. It has been attacked by both the Left and the Right, despite having a distinctly more conservative orientation than it had in the 1990s. And appointments to the Court reflect a much sharper partisanship, even though there has been no single nomination battle to rival that of Robert Bork or Clarence Thomas.

This second edition has been thoroughly updated, to include the major decisions of the 2014–15 Supreme Court Term, but the structure and themes of the first edition remain. Above all, the Court continues to exhibit the same complex blend of politics and law and continues to play a vital role in American government and policy-making. More than ever, students of politics in the United States need to understand how and why the Court has acquired its role and power and why it is an indispensable feature of government in America. Hopefully this second edition will assist students to achieve that understanding.

Preface to the first edition

When I was first asked to write an introductory-level book on the United States Supreme Court, I must confess to having had reservations. It was not that I had any doubts about the need for new students of American politics to understand the role played by the Court: after all, time has only added credence to Alexis de Tocqueville’s famous perception in the 1830s that ‘scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’. But less well-known is de Tocqueville’s apprehension that he might not be able to render his study of the American judiciary interesting to non-lawyers. As he put it:

But how can one make the political action of American tribunals understandable without entering into some technical details of their constitution and procedures? And how can one plunge into these arid details of a naturally arid subject, without rebuffing the reader’s curiosity? How can one remain clear and still be brief?

I don’t flatter myself that I have avoided these different perils. Lay readers will find me too lengthy, and lawyers too brief. But that is an inevitable disadvantage of my whole subject, and of this specialised part of it in particular.¹

Amen to that.

Nevertheless, the aim of this book is to overcome these difficulties and to convince students and teachers of American politics that the Supreme Court is every bit as important, accessible and fascinating a topic of study as the Congress or the presidency. Certainly the problems posed by confronting readers with unfamiliar legal terminology and procedures are real, but they are not insurmountable. My own undergraduates who have studied the Court with me have proved that.

In fact, any student reading about the Court or reading its actual Opinions soon grasps the fact that while law and judicial procedure provide the framework for Supreme Court decisions, politics is often central to their substance. One cannot understand the nature and role of the Supreme Court, therefore, without an appreciation of its dual nature as a political and legal body. But it is precisely this blend of politics and law that makes the US Supreme Court a unique and stimulating object of study.

No one, I am sure, needs convincing that racial equality, abortion or freedom of the press are highly political issues in the United States. Nor is there any doubt that the Supreme Court has been a central player in the policy-making process on these matters. But the real fun of studying the Court begins with the realisation that the Justices are obliged to approach these policy issues in a manner quite different from that of the President or members of Congress, and the distinctively judicial approach to policy-making draws upon not merely legal reasoning, but large doses of political philosophy, history and social morality. To study the Supreme Court, then, is to study the interplay of American politics, law and culture when they meet in the federal courtroom.

With these perspectives in mind, I have set out the structure of the book as follows. Chapter 1 aims to win the reader’s interest in the most direct fashion: it examines some of the fascinating policy issues that are central to the Court by examining its contemporary agenda. It analyses the Court’s major decisions on controversial issues such as race, abortion, capital punishment and gay rights. At the same time, it addresses the vital underlying questions of how the Court’s agenda is broadly determined at any given point in its history. I have not attempted to be comprehensive in my coverage of the Court’s contemporary agenda, since that would require a separate book in itself, and there are already several useful texts which do just that. I hope, however, that the issues I do analyse will give the reader a good idea of the character of the Court’s contemporary agenda, as well as its genesis and import for modern American government.

Chapter 2 then takes a step back and investigates how the framers of the Constitution envisaged the nature and the role of the Supreme Court, and how and why these have evolved.

Chapter 3 takes up the specifically judicial and legal basics of the Court’s structure and processes and looks at the rules and procedures that govern the Justices’ work. If these are indeed, as de Tocqueville would have it, the most ‘arid’ aspects of the Supreme Court, they are nonetheless vital to an understanding of the special way in which the Court operates.

Chapter 4 examines the key concept of judicial review, the source of the Court’s power. In particular, the focus is on the ways in which political considerations have become increasingly prominent in constitutional interpretation in the twentieth century and on why this development is problematic for the Court’s role.

Chapter 5 analyses one of the most controversial features of the contemporary Supreme Court, the process of appointing new Justices. The Robert Bork and Clarence Thomas nominations were merely the tip of a political iceberg and so we examine the politicisation of the appointment process.

Chapters 6 and 7 take up perhaps the most important questions of all: how powerful is the Court and what is its role in American government and politics today?

Each chapter is designed to be self-contained so that, as far as possible, readers can dip into the book according to their needs and interests. This inevitably involves a certain amount of repetition, but hopefully not so much that it proves irksome for those who choose to read the book whole.

Any book that seeks to introduce readers to a new field of study has the obligation to inform accurately and explain coherently. Naturally, I hope I have fulfilled these demands, at least to the point where both teachers and students will find this book useful. I hope also, however, to have conveyed something of my own enthusiasm for the subject. For it is my abiding conviction that there is no better way to join the American debate over key issues such as abortion and race, and key concepts such as liberty and equality, than to study the Supreme Court.

Note

1 Alexis de Tocqueville, Democracy in America (1835–40), New American Library: New York, 1956, p. 74.

1

The Court’s contemporary agenda

The United States Supreme Court is an important, exciting and controversial institution. While lawyers and academics fiercely debate how and why the Supreme Court makes its decisions, for most Americans it is the decisions themselves that matter. This is hardly surprising given the fact that the Court often has the last word on the great political controversies of the day. We begin therefore with an examination of the Supreme Court’s contemporary agenda: after a brief overview of the Court’s past agendas, we identify the major questions of public policy coming before the Court today.

Politics and the legal agenda

As early as 1835, Alexis de Tocqueville observed that ‘scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question’.¹ Although there is an element of exaggeration here, de Tocqueville had astutely perceived that the controversies that come before the Court are political rather than legal in origin. What turns political issues into judicial questions is the United States Constitution. All laws and government actions must comply with the Constitution, so anyone who has lost the political battle over an issue may yet claim that the Constitution has been violated. And in the United States, it is the courts that resolve constitutional disputes.

De Tocqueville’s observation needs to be qualified, however. Most importantly, the Supreme Court has almost total discretion over which cases it chooses to hear. And while it receives many thousands of petitions for judicial review each year, it accepts only a small percentage – usually 1 or 2 per cent or about seventy-five cases (see Chapter 3). The Court is therefore highly selective about which cases it will hear and not every major political controversy will necessarily end up being resolved by the Justices. However, the Court’s agenda inevitably tracks the nation’s political agenda since political losers on major issues will often seek a constitutional ruling in their favour.

The Founding era

The nation’s political agenda changes over time. In the early decades of the American republic, the most significant political debates revolved around the allocation of powers set out in the Constitution, written in 1787 and formally adopted in 1789. In particular, there was conflict over the issue of federalism, that is, the Constitution’s division of powers between the national government on the one hand and the individual States’ governments on the other. In this era, the Supreme Court also settled important political disagreements over the Constitution’s allocation of powers to Congress, the President and even to the Court itself.

The Slavery era

By the mid nineteenth century, much of the heat had gone out of these issues as the nation gradually came to terms with its new political and constitutional system. However, one issue brought these tensions back to prominence: slavery. Some States wanted to protect slavery and expand it throughout the United States. Other States had banned it and wanted to stop its spread. Moreover, the federal government was responsible for territories that had not yet been organised into States and the question arose as to whether slavery should be permitted in these federal jurisdictions. It was not difficult to reframe these political and economic conflicts as constitutional claims. Pro-slavery Americans saw slaves as private property and cited the Constitution’s protection of property rights. On the other hand, those who opposed slavery cited the Constitution’s protection of liberty and citizenship for slaves who had moved to States where slavery was prohibited. In the case of Dred Scott v. Sandford (1857), the most infamous in the Supreme Court’s history, the Justices voted by a majority of 7–2 to the effect that slaves were property and remained so even if their owners took them to States that banned slavery. The Court’s decision made compromise on the issue of slavery far more difficult and eventually it required the American Civil War (1861–65) to settle the issue once and for all.

The era of economic regulation

After the Civil War, the political agenda changed again, as new issues arose out of the rapid industrialisation that was sweeping the country. From the 1870s to the 1930s, fierce debates and sometimes industrial violence were generated by the rival interests of businessmen and workers. While the former wanted complete freedom to maximise their profits without interference by trade unions or government, workers wanted what they saw as fair wages, reasonable hours of work and health and safety protections. In the first decades of the twentieth century, the federal government and many State governments introduced laws to regulate industry and commerce, particularly after the onset of the Great Depression in 1929.

Businessmen and corporations appealed to the Constitution and the courts to protect what they saw as their economic freedoms. The Supreme Court was often sympathetic to these claims, citing the fact that the Constitution of 1787 did not grant wide regulatory powers to government, whereas it did protect individual liberty. However, in 1932 Franklin D. Roosevelt was elected President on the promise of giving the American people a ‘New Deal’. This involved a vast swathe of federal government schemes and regulation designed to regenerate the economy and provide Americans with a measure of economic security. For several years, the Supreme Court rejected key elements of the New Deal programme. However, when Roosevelt was re-elected in 1936, with large majorities in Congress and overwhelming public support, the political pressure on the Court became immense. In 1937 the Supreme Court effectively gave way. In the case of West Coast Hotel v. Parrish, the Court reversed a decision it had made fifteen years earlier and upheld the constitutionality of a minimum wage law. Although it said nothing explicitly, the Supreme Court was to remove economic regulatory legislation from its agenda for the next sixty years.

The Civil Rights era

However, just as the Court can choose to abandon a major part of its agenda so too it has the freedom to take up a new cause. Just one year after its decision in West Coast Hotel v. Parrish, the Court gave a hint as to the new direction its agenda would take. In US v. Carolene Products (1938), the Court reiterated its view that economic regulation was a matter best left to elected politicians to decide. In a footnote to his written Opinion in the case, however, Justice Harlan Fiske Stone raised the idea that the Court might have a special duty to protect the rights of ‘discrete and insular minorities’. Justice Stone was concerned that certain permanent minorities, such as African-Americans, could not trust the majoritarian democratic process to protect their rights. Majorities sometimes ignored or even despised certain minorities, and elected politicians might be tempted to follow majority prejudice. In such cases, argued Stone, unelected judges, including the Justices of the US Supreme Court, should step in to ensure that even unpopular minorities could enjoy their rights.

This so-called Footnote Four helped transform the Supreme Court from a body seen as a defender of wealth and privilege into a champion of the oppressed and disrespected. African-Americans were the major beneficiaries of this new Supreme Court agenda. Beginning with the school desegregation case of Brown v. Board of Education (1954), the Court led a historic transformation of the inequality and discrimination that had been imposed on African-Americans since the abolition of slavery. Other minorities and disadvantaged groups were also to benefit from the Court’s new agenda. These included Jehovah’s Witnesses, criminal suspects, women, disabled people and political protesters.

The Court gradually fashioned a constitutional philosophy that protected not just unpopular minorities, but also individuals who challenged conventional majoritarian viewpoints. Under the banner of privacy of the individual, the Court created new rights that struck down legislation that had been in place for many years. Most controversially, the case of Roe v. Wade (1973) created a ‘right to abortion’ that allowed women considerable discretion in deciding whether to continue a pregnancy or to terminate it. While many saw this as a positive move in helping to overcome the disadvantages facing women in a male-dominated society, others viewed it as unnatural and immoral. Nevertheless, the Court had decided that the choice over abortion belonged to the individual woman and her doctor, not the majority as expressed through elected politicians.

The liberal twentieth century

Broadly speaking, the twentieth century witnessed the triumph of political liberalism in the United States. First, the Great Depression engendered a demand for national regulation of the economy, the introduction of a welfare state and recognition of the rights of workers. Although this fell far short of European-style socialism, it was a radical break from the American tradition of laissez-faire economics and individualism. The Supreme Court eventually embraced the new liberalism, after decades of resistance.

Following their triumph in economics, liberals proposed a new socio-cultural agenda. Beginning with the cause of ending racial discrimination, liberals challenged many other aspects of traditional culture and practice. Congress passed and Presidents signed landmark civil rights legislation, including the Civil Rights Act of 1964, the Voting Rights Act of 1965 and the Civil Rights Act of 1968. The federal government struck a blow for gender equality with the passage of the Equal Pay Act of 1963. In 1964 President Lyndon Johnson launched a ‘War on Poverty’ as part of a goal of creating a ‘Great Society’. Many Republicans went along with these reforms and added their own measures. President Richard Nixon, for example, created the Environmental Protection Agency in 1970 and embraced the idea of ‘affirmative action’ to overcome race inequalities. The Supreme Court not only upheld these liberal policies, it initiated some of its own, including the banning of school prayer (Engel v. Vitale, 1962); requiring States to provide lawyers to defend poor people accused of crimes (Gideon v. Wainwright, 1963); and limited State powers to ban pornography (Stanley v. Georgia, 1969).

In short, the Supreme Court’s agenda in the twentieth century mapped on to the political agenda of the United States as a whole. It is a clear vindication of de Tocqueville’s observation that America’s great political controversies frequently become judicial questions for resolution by the Supreme Court.

What is also evident, however, is that neither the Supreme Court’s role nor its agenda is fixed. The role of the Court in embracing economic liberalism was passive and deferential to majorities and their elected politicians. In contrast, the Court’s role in pursuing socio-cultural liberalism was very active, sometimes radically so.

We can draw two further conclusions from this. First, the Supreme Court is part of the political and governmental fabric of the United States and, as a result, comes under great pressure from events elsewhere in the political system. As we have already noted, losers in the elected branches of government have one last card to play – an appeal on constitutional grounds to the unelected judiciary. This is as true of an industrialist opposed to minimum wage legislation as it is of an African-American being treated unequally to other citizens.

Second, it is important to understand that the Justices of the Supreme Court have a choice