When it comes to the three branches of government, the U.S. Supreme Court probably carries the most mystery behind it. Sure, the court may seem like nine justices in wizard-like robes magically interpreting the Constitution, but what really goes on behind closed doors?
Elite Daily spoke with two Supreme Court experts about what to understand about how the United States interprets its laws at the highest level, from abortion to civil rights and everything in between. Justin Crowe, Ph.D., is the chair of leadership studies and a professor of political science at Williams College. Richard H. Pildes, J.D., is the Sudler Family professor of constitutional law at the New York University School of Law. Here are their perspectives on the Supreme Court — and the most pressing issues it faces today.
The following interviews have been edited for length and clarity.
Start at the start: Why do we have a Supreme Court in the United States? Where did the concept come from, and what’s the court’s role?
RP: The Constitution directly creates the Supreme Court, which is the head of the judicial branch of the national government. As the most powerful federal court in the country, the Supreme Court provides the final resolution to questions of federal law, including both the meaning of federal statutes and the meaning of the Constitution.
JC: When James Madison designed the Constitution, he was inspired by the French philosopher Montesquieu’s ideas on the separation of powers in government. In essence, the Supreme Court serves as a check on legislative and executive power. Justices have a responsibility to protect people’s rights by preventing Congress and the president from violating the Constitution. If Congress, or any state, passes a law that violates some constitutional provision, the court has the power to step in and say “that law is null and void.” The court is meant to act as a referee — the branch that guarantees the rules of the game are followed.
Can you walk me through the process of hearing and deciding a case? How does that work?
JC: The U.S. national court system operates on a hierarchy. There are the federal district courts, which are trial courts and are the lowest in the hierarchy. Then there are the circuit courts of appeals, which determine if federal courts got it right, and act as the intermediate tier in the hierarchy. Then there’s the Supreme Court, which people can appeal to if they lose their case in the court of appeals. This hierarchy of judicial review is called certiorari.
Four justices must agree to hear a case for the Supreme Court to take it. Once the court agrees on that, the case goes on the agenda, the litigants from both sides submit their briefs and argue their cases, and there’s a brief Q&A period from the justices. The justices then retire to hold a conference between the nine of them, and finally cast their votes to make a decision, usually on the same day of the conference.
After a case is decided, the chief justice assigns who writes the official opinion of the court. Justices may write concurring opinions, which means they agree with the majority’s ruling but for a slightly different reason, and they may write dissenting opinions, which means they disagree with the majority’s ruling. Finally, the court hands down its opinion and it becomes part of law.
What are some of the most important historical cases demonstrating the scope, powers, and influence of the Supreme Court?
JC: The judicial branch took some time to come into its own. In the early days of the American Republic, the Supreme Court was relatively weak and inconsequential compared to some of the country’s distinguished political figures. Then, in a case called Marbury v. Madison, the court asserts a power known as judicial review. It’s the idea that the Supreme Court can review acts of Congress or the president for consistency with the Constitution.
RP: One of the first cases that comes to mind is Brown v. Board of Education, which is the 1954 case that established segregation as unconstitutional under the 14th Amendment. Another critical case is 1974’s The United States v. Nixon, which involved then-President Richard Nixon. This was a landmark Supreme Court decision that essentially held that the president is not above the law, but accountable to it.
What’s the process to appoint a new Supreme Court justice?
JC: When a vacancy occurs, the president will gather with advisers to talk about people they think would be good for the position. Ordinarily, they already have a few people in mind. White House staff will look into everything a potential candidate ever wrote, and the president will interview these people. They’ll run through a series of issues to try and get a sense of how a candidate would decide if they were on the court. It’s an intense vetting process. Ultimately, with the aid of advisers, the president will make a determination on who to nominate to the Senate. Then, the Senate will scrutinize the candidate’s record again through Senate confirmation hearings, and the Senate will vote up or down on the candidate. If a majority is there, the person gets to become a new Supreme Court justice.
What decided how many justices there are on the Supreme Court? Have there always been nine? Can more justices be added?
JC: More can be added and, and it’s done by statute. The Constitution doesn’t specify the number of justices — it just specifies there’s a Supreme Court and a chief justice. The number of justices has fluctuated from as many as 10 to as few as six. Adding justices to the court doesn’t require a constitutional amendment. Congress would just need to pass a bill, and the president would need to sign off on it.
Where does the idea of “packing the court,” i.e., having a court of more than nine justices, come from? And why is it controversial?
JC: The big movement to “pack the court” happened in the early 1930s when Franklin Roosevelt became president. America was in the midst of the Great Depression, and Roosevelt tried to push the New Deal through to revitalize the economy. However, the Supreme Court struck down several New Deal laws — laws establishing a minimum wage and workers’ rights — as unconstitutional. Roosevelt was outraged by this: He’s trying to save the country from economic ruin, and these crusty old guys on the Supreme Court are refusing to let up.
So he proposed the Judicial Reorganization Bill of 1937, otherwise known as the “court-packing plan.” If passed, Roosevelt would get to add a new justice to the court for every justice who has served a certain amount of time and is over a certain age. There was plenty of opposition to Roosevelt’s proposal, because it looked like he was trying to stock the court with people who agreed with him. In the late 1930s, the court was largely seen as an apolitical guardian of the Constitution, insulated from small politics and popular opinion — and many people viewed Roosevelt’s attempt to add justices as an attack on the Constitution itself.
Roosevelt eventually lost the battle over court packing, but ultimately the court came around to validate the New Deal. The court eventually became seen as a protector of the little guy — people on the margins of American society.
At this point, it’s pretty common knowledge that Supreme Court justices aren’t technically supposed to have political alignments. However, they usually do, and justices get called “liberal” or “conservative.” How does this affect the court’s impact on the government?
JC: I want to be clear — this idea of the court acting as an objective, neutral referee has largely been a fiction. The court has hardly ever been a neutral referee, in part because law or the Constitution are inherently interpretable documents. The same words, including legal language, can mean different things to different people at different points in history. There is no “correct” way to interpret the Constitution, so there’s no such thing as a truly objective, neutral, impartial reading. Justices read the Constitution as any human being would, with their own preconceived notions, biases, and conceptions of right and wrong.
In prior eras where justices identified as liberal or conservative, those labels didn’t necessarily dictate their rulings to the same degree as they do today. There are examples of justices appointed by Republican presidents sometimes doing things that look better for liberals and vice versa. That became less true in the 1970s, ’80s, and ’90s. Today, the political party that appoints a justice becomes a likely indicator of how they’re going to vote.
The concern people have now is: If justices are so closely aligned to the party of the president who nominated them, then they’ve just devolved into politicians in black robes. And if all they are is politicians in black robes, we need to ask serious questions about why we invest them with the awesome power to interpret the law at such a high level.
RP: The court doesn’t have any formal power of its own to enforce its rulings, which is something that many people don’t realize. Ultimately, it depends on the executive branch to enforce its rulings, if people are not voluntarily complying with their interpretation of the law. We’ve had moments in our history where that’s been very clear: When there was resistance to the court’s orders on desegregation in the 1950s, President Dwight Eisenhower sent federal troops to enforce the Supreme Court’s orders and escort students to schools.
It’s important for the court’s rulings to be widely perceived as legitimate, because so much of its authority comes from that perception.
What actual impacts do we tend to see from a politically tilted court, in either direction?
JC: Liberal-leaning courts tend to be much more receptive to the claims of litigants, claims of the accused, and claims of prisoners. They’re also more willing to assert individual rights against the police and prosecutors. Conservative-leaning courts tend to be far more deferential to police practices and skeptical of the rights of the accused. All of the big cases about the rights of the accused: Miranda v. Arizona, which established Miranda warnings; Gideon v. Wainwright, which established legal representation for the poor; Mapp v. Ohio, which established that illegally obtained evidence may not be used against someone in court — were decided by a liberal court in the 1960s.
Historically, liberal-leaning courts also tend to have a broader view of the Equal Protection Clause, as part of the 14th Amendment, than conservative-leaning courts. There are exceptions, but generally, in cases concerning what the 14th Amendment means for the Black community, the LGBTQ+ community, and more, liberal justices have been far more receptive to protecting against discrimination than conservative justices.
According to Gallup, public approval of the Supreme Court is dropping. What events may have influenced the American public’s opinion of the Supreme Court?
JC: In part, this is a reflection of broader political polarization — liberals don’t like things that conservatives do, and conservatives don’t like things that liberals do. As the court has become more identified with political parties, more people have begun to see the court as a policymaking branch or a political institution that should be criticized and applauded like other political institutions. People no longer believe the court stands above political influence. And once that puncture happens, people just begin to see the court as just a group of people doing things they don’t like.
RP: Polarization is affecting the way many people perceive almost all public institutions in the United States right now, and it’s not surprising that the Supreme Court gets swept up into that. The dynamics of political polarization, the increasing distrust of government institutions, and the highly divisive perceptions on how these institutions are performing all spill over into perceptions of the court. Public trust in all our institutions has been declining.
With the United States waiting for a decision in Dobbs v. Jackson, which is predicted to undermine and possibly overturn Roe v. Wade, there’s a lot of talk about precedent and overturning previous decisions. Can you explain precedent and its impact on the court’s decisions?
JC: Precedent is a feature of the legal doctrine stare decisis, which literally means “let the decision stand.” It obligates courts to follow previous decisions in historical cases when making a ruling on a similar case. It supports the idea that if the Constitution has a meaning, then that meaning should apply now, and 20 years ago, and 20 years from now.
Opponents of stare decisis may say, “Sometimes precedents are wrong — should we just allow an incorrect precedent to stand because it was decided a long time ago?” These arguments may also point to issues like school segregation, and say, “Brown v. Board of Education, the famous school desegregation case in the 1950s, had to overturn an 1890s case called Plessy v. Ferguson — that case was wrongly decided. Should the court remain bound to that incorrect precedent?”
On the flip side, advocates of stare decisis argue that we have to be absolutely certain a precedent was wrongly decided (like in Plessy v. Ferguson) and not just disagreed upon (like in Roe v. Wade). Abortion is an issue on which the American public is just as divided on as it was in the 1970s, whereas school desegregation was an issue on which cultural norms and societal understandings had greatly shifted. Advocates of stare decisis would say, “Maybe Roe v. Wade isn’t a great case for overturning precedent, because it looks like this group of justices has a different reading of the Constitution than the group that decided it in the 1970s.”
RP: Some of the factors for reconsidering precedent have to do with how much reliance has been placed on that precedent over time by other institutions, or by Americans in general. Another factor has to do with how embedded into the rest of the law that precedent is. Other factors have to do with whether the decision has become something of an outlier due to other changes in the law that have happened over the decades, or whether that precedent has become outdated and unworkable. Sometimes the court will immediately decide to not extend a precedent beyond its original context, and sometimes the court will gradually cut back how that precedent is applied, without actually fully overruling it.
If you had the power to do so, what might you do to improve the Supreme Court?
RP: If we were creating the Supreme Court anew, I think we should give serious consideration to term limits. Would it be better to have a system in which the justices served for long terms of office, for a fixed number of years, but did not serve for life? This is the way most other democracies with high courts that interpret their constitutions structure their systems.
JC: There are lots of things people have suggested. The problem is, all of them have potential downsides. People have suggested adding new justices to the court. The challenge is, if one president’s party adds some justices today, the other party’s president may add more justices tomorrow. People have also suggested term limits for Supreme Court justices — staggered 18-year terms, so every two years there’s a new justice appointed, and each president gets to nominate two Supreme Court justices during their four-year term. While some people believe term limits will make the court’s composition more regular (and remove the “life or death” stakes on appointments), I’m concerned they’ll just keep us stuck in a perpetual cycle of appointment politics. Some people have proposed recalling justices through a popular referendum, but I worry that might make them pander to public opinion. People have also talked about supermajority requirements for overturning a law — instead of just needing five out of nine justices in agreement to overturn a law, there would need to be seven in agreement. However, this would mean laws would rarely be struck down. Again, I’m not sure if any of these would be a cure-all, but these are just some of the proposals that have been made.