With the nomination of Judge Brett Kavanaugh to the Supreme Court, that august judicial body and its importance to the lives of citizens has been much in the news, a fact that speaks to the continued vitality of an entity that is more than two hundred years old. The Supreme Court was created by Article 3 of the Constitution and was intended to be the court of last resort for disputes of Constitutional law. As such, it may seem far removed from the lives of ordinary Americans. However, the decisions made about the highest court in the land can have a surprising impact on ordinary, daily issues.
While Article 3 of the Constitution outlines the need for a federal judicial branch, the Supreme Court is the only court actually defined in the Constitution. The Court, along with the legislature and the executive branch comprise the three branches of America’s federal government. While the term “checks and balances” is not used in the Constitution, the three branches of government were intended to prevent power from becoming concentrated in any group. The makeup of the Court is also not established by any case or statute; instead, the composition of the Court is up to Congress. Under the Judiciary Act of 1789, the Court was originally comprised of six justices. The number of justices on the Court fluctuated between five and ten until an 1869 Act of Congress set the number at nine, a number corresponding to the number of federal judicial circuits at the time. While this number hasn’t changed in a century and a half, Congress could change this at any time.
The 1804 case of Marbury v. Madison established the Supreme Court’s power to review acts of Congress for their constitutionality. This ruling means that the Supreme Court can strike down any law that it finds in conflict with the Constitution. The case also establishes the Court’s position as a branch of government just as powerful and significant as the Congress and the Presidency: other branches of government may write and execute the laws, but the Supreme Court has the final authority to decide whether those laws comply with the Constitution. This fact alone underlines the importance of the Court, but the Court also has decided cases that have had a profound effect on American law and culture.
Supreme Court decisions have established the constitutionality of many laws and practices, and in some instances, their names are better known than the practices they address. For example, Brown v. Board of Education has become shorthand for the process of school desegregation. In that unanimous 1954 decision, the Court held that compelling children to attend racially segregated public schools violated the Fourteenth Amendment’s Equal Protection Clause, overturning the doctrine of “separate but equal” services and facilities established in 1896 by Plessy v. Ferguson. Miranda v. Arizona gave its name to the list of rights read to a suspect in police custody. “Mirandizing” a suspect requires an officer to inform that suspect of the constitutional right to remain silent.
The Court has also been the deciding voice in cultural controversies that affect some of the most intimate aspects of citizens’ lives. The 1973 decision Roe v. Wade extended the right to privacy (which is not explicitly defined in the Constitution, but which is part of a “penumbra” of rights extending from those articulated in the Bill of Rights) to include the right to obtain an abortion. The Court also has helped to define who enjoys the protections of marriage. In Loving v. Virginia, the Court struck down prohibitions against interracial marriage. More recently, a case that was, on its face, about the vagaries of tax law helped to pave the way for broader legal recognition of gay marriage. Thea Speyer and Edie Windsor were married in Canada and had their marriage recognized by New York state, but when Speyer died, Windsor found herself liable for hundreds of thousands of dollars in federal taxes because the two women did not qualify for a marital exemption under federal law. Windsor’s subsequent lawsuit against the United States invalidated the federal Defense of Marriage Act (which defined marriage as one man, one woman) on the grounds of Equal Protection. This decision laid the groundwork for a subsequent expansion of the right to marry under Obergefell v. Hodges. Because law shapes private lives, and because the Supreme Court has the power to interpret that law, the Court’s composition matters.
For several months after the death of Justice Antonin Scalia, Congress refused to confirm President Obama’s proposed replacement. The Court had only eight members, which meant that any close decisions gridlocked. With the appointment of Justice Neil Gorsuch, the pace of decision-making has increased. Many of these recent decisions may have far-reaching and unanticipated impacts.
Within the past few months, the Supreme Court ruled on a case involving a public employee who argued that, since he didn’t belong to the union, he should not have to pay mandatory “fair share” fees to assist with basic union services. (There is already law in place to prevent employees from having to join a union or pay dues.) The plaintiffs in Janus v. AFSCME cast the issue as a violation of First Amendment rights, and by a vote of 5 to 4 split along party lines, the Court agreed. In the majority opinion, Justice Samuel Alito wrote that requiring employees to pay union dues was tantamount to subsidizing private speech. The effects of this ruling are likely to be wide-ranging: the specific holding in Janus could deter membership in public employee unions, and the Court’s reasoning could encourage people to challenge and reject any fee with which they disagree, from HOA fees to taxes.
The Supreme Court is scheduled to hear thirty-eight cases in its next term. These cases include a consideration of whether a mentally disabled inmate can be executed for a crime he does not remember, if and when an immigrant released from criminal custody becomes exempt from mandatory detention, and how the Endangered Species Act affects the use of privately owned land that is not critical to the conservation of a species. The cases also touch on a variety of constitutional and federal laws including the First Amendment, the ADEA, and the Fair Debt Collection Practices Act. All these cases promise to have exercise an important influence on free speech, employee rights, and consumer remedies. But, since Supreme Court judges are appointed for life, the judicial philosophy of anyone appointed to the highest court in the land is likely to have ramifications for citizens’ rights and responsibilities for many years to come. It took nearly sixty years for Brown to undo the damage done by Plessy, so the effects of a single ruling can last a lifetime.
Kathleen Davies is a Staff Writer for GetLegal.com. She is a graduate of the University of Michigan Law School and has practiced law and taught legal writing and advocacy.