Conservative Historian

A Brief History of the United States Supreme Court - Part I: The Role of the Court

July 10, 2022 Bel Aves
Conservative Historian
A Brief History of the United States Supreme Court - Part I: The Role of the Court
Show Notes Transcript

We start with the medieval star chamber, move to the Constitution and Article III, and go through Marbury and Dred Scott.  We also take a few stops to look at Dobbs.  

A Brief History of the Supreme Court of the United States – Part I

July 2022


Deciding not to decide is, of course, among the most important things done by the Supreme Court. It takes a lot of doing, but it can be done. Thurgood Marshall


"I have no respect for the passion of equality, which seems to me merely idealizing envy."

 ― Oliver Wendell Holmes Jr.


"An unlimited power to tax involves, necessarily, a power to destroy; because there is a limit beyond which no institution and no property can bear taxation."

 ― John Marshall


My view is regardless of whether you think prohibiting abortion is good or whether you think prohibiting abortion is bad, regardless of how you come out on that, my only point is the Constitution does not say anything about it. It leaves it up to democratic choice. 


If I have brought any message today, it is this: Have the courage to have your wisdom regarded as stupidity. Be fools for Christ. And have the courage to suffer the contempt of the sophisticated world.

 Antonin Scalia


In a 1983 thriller starring Michael Douglas entitled the Star Chamber, a secret society of judges hires assassins to snuff out criminals who escape courtroom justice to deal with their frustration with a legal system gone haywire. Let's hope some of the fringier elements of the left do not get any bright ideas.


The Star Chamber originates in the English institution of the same name that tried people too powerful to be brought before the ordinary common-law courts; the fear was corruption. From the Middle Ages, the Star Chamber consisted of a committee of the English king's council. It was reorganized in 1487 under King Henry VII so that it was composed of four high state officers, with the power to add to their number a bishop, a temporal lord of the council, and two justices of the Court of Westminster. Henry VIII's chancellor and Cardinal Thomas Wolsey encouraged plaintiffs to appeal first to the Star Chamber before filing in the ordinary courts.


Also, in Henry VIII's reign Thomas More was tried for treason in a fashion we would have found problematic. More's trial opened in Westminster Hall on July 1, 1535. Although a jury of twelve men would have the final say, More had to understand that a verdict of guilty was inevitable. Were the jury to have declared otherwise, they might have faced imprisonment themselves. In this particular case, the executive branch of the British government at the time, King Henry VIII, the legislative branch, and the judicial were practically combined. Thomas Cromwell, the King's Secretary and dominator of parliament, the legislative branch, helped conduct the trial. The Duke of Norfolk presided. This centuries-old practice of combining executive and legislative power with judicial did not cease until the late 1800s, a century after the American Constitution came into being. Until the end of the 19th Century, judges could be elected as MPs, and in some rare cases, judges, such as the Lord Chief Justice, would serve as members of the Cabinet and thus be members of the government.


It was this in mind that the Constitution features Article III. Article I covered the legislature and II the executive branch. 

This order was not random but in which the founders thought were the most important institutions. Because the legislative was seen to be the most representative, they placed first. 

But it does not mean that any branch is subordinate to another.  


Article III of the Constitution of the United States


The judicial Power of the United States shall be vested in one Supreme Court and such inferior Courts as Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good behavior and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.


Federalist No. 78 is an essay by Alexander Hamilton, one in The Federalist Papers. Like all of The Federalist papers, it was published under the pseudonym Publius. Titled "The Judiciary Department," Federalist No. 78 was published May 28, 1788, and first appeared in a newspaper on June 14 of the same year. It was written to explicate and justify the structure of the judiciary under the proposed Constitution of the United States; it is the first of six essays by Hamilton on this issue. In particular, it addresses concerns by the Anti-Federalists, those opposed to too much power vested in the federal government, over the scope and power of the federal judiciary, which would have comprised unelected, politically insulated judges that would be appointed for life.


One of the core tenets of the Constitution is the separation of powers so that no branch garners enough authority to subjugate the other two. This was what Hamilton had in mind. "If it is said that the legislative body is themselves the constitutional judges of their own powers and that the construction they put upon them is conclusive upon the other departments, it may be answered that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed that the Constitution could intend to enable the people's representatives to substitute their will for that of their constituents. It is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within limits assigned to their authority."


Yet there was a concern that since the judiciary controlled neither the "purse," as did Congress, nor the Sword (the president as commander in chief), it would be relegated not to a co-equal status but rather as subordinate to the first two. Hamilton answers this as such, "It equally proves that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the executive. I agree that "there is no liberty if the power of judging is not separated from the legislative and executive powers."


Here will come full stop with our history lesson and examine just what Hamilton feared, what has come to pass, and what has most recently been undone. 

Without an act of Congress, the maker of laws, the Supreme Court in 1973, in deciding the case Roe V. Wade, decided to make a law in the case of legalizing nationwide abortion. 

Regardless of pro-life or pro-choice arguments, this was precisely what Hamilton was alluding to. Simply put, it is not the role or the power of the Supreme Court to do what was done in Roe. For that matter, when John Roberts changed the text of Obamacare, making it into a tax, SCOTUS again assumed a power not directed. This is the core of the Dobbs v. Jackson decision, which has now overturned Roe V. Wade. We will explore this further in future podcasts. 


As Hamilton notes, Federalist No. 78 views Supreme Court Justices as an embodiment of the Constitution, the last group to protect the foundation laws set up in the Constitution. This coincides with the view above that the judicial branch is the branch of judgment, "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges as a fundamental law. It, therefore, belongs to them to ascertain its meaning and the meaning of any particular act proceeding from the legislative body." And there are those words proceeding from the legislative body, but in the case of Roe, there was no law to judge. 


Now some think the Constitution is an outdated document. In a July 4 piece by Paul Waldman, the author declared, "This July 4, let's declare our independence from the Founding Fathers." Arguably the most prominent of these early skeptics was Woodrow Wilson, the first of our presidents to question the Constitution fundamentally. First, let's look at the historical record of this governing document—280 years and counting with a single interlude around the civil war. We have had the number 1 economy since the 1870s. Hundreds of millions were raised out of poverty. Survived a civil war, depressions, plagues, and world wars. Yup - let's get rid of the Constitution! Why? Because Congress & state legislators have to do their jobs, and liberals and progressives now have to persuade not five justices but the people.  


All Justices are nominated by the President, confirmed by the Senate, and hold their offices under life tenure. Since Justices do not have to run or campaign for re-election, they are thought to be insulated from political pressure when deciding cases. And, of course, they are not. Over the past 20 years, we have seen Chief Justice John Roberts make decisions, especially on that of Obamacare, that have little to do with the law and much to do with the image and optics of the Supreme Court itself.  


Justices may remain in office until they resign, pass away, or are impeached and convicted by Congress.


But of course, the Constitution is not a permanent document but contains amendments, so there are ways to change it, assuming the arguments can be made, though progressives often seem reluctant to try.


Another shibboleth is that Constitution, a document partially crafted by slave owners, is somehow passé and outdated because it cannot respond to change. I have 27 strong arguments against this position and will start with the first of the constitutional changes, number 11.


The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state or by citizens or subjects of any foreign state. What this means is that U.S. courts can't hear cases and make decisions against a state if the state is sued by a citizen who lives in another state or by a person who lives in another country. Anti-Federalists (who generally opposed the Constitution) feared that this provision would allow individuals to sue states in federal court. To keep them on board, the 11th 




In George Will's magisterial opus, The Conservative Sensibility, he lays out the necessary friction within a republic such as ours. 

"The essential drama of democracy derives from the inherent tension between the natural rights of the individual and the constructed right of the community to make such laws as the majority necessary and proper." For Will, our two founding documents stood in for these concepts. The Declaration states our natural rights and the Constitution of how to govern a group of individuals living not in the traditional monarchy but something new, a continental republic.  

There were undoubtedly great men at the heart of these documents, Thomas Jefferson, who crafted the vision, James Madison, who built the machinery to enable its inception; and Alexander Hamilton to make certain that the machine would be built and that it could be made to work. But even these figures stand in awe of George Washington and Abraham Lincoln. Will states, "Without George Washington, there would have been no country. Without Lincoln, a shattered nation would never have been reconnected with the Founder's premises." But to this august list, Will adds a figure far less known than the ones previously mentioned. "In his 34 years as Chief Justice of the Supreme Court of the United States, John Marshall established constitutional reasoning at the core of American governance." In Will's view, Marshall established judicial review and made the judicial branch important to the supervision of Democracy.  


One of Marshall's achievements was won in Marbury v. Madison. After President John Adams lost the 1800 election, before he left office, he appointed Marbury as a justice of the peace and signed the commission. However, soon thereafter, Thomas Jefferson became President of the United States and refused to allow Secretary of State James Madison to deliver the commission to Marbury. So Marbury sued Madison in the Supreme Court to get his commission via a writ of mandamus, an order from a court to an inferior government official ordering the government official to properly fulfill their official duties or correct an abuse of discretion.


Under Justice John Marshall, the court specifically held that the provision in the 1789 Act granting the Supreme Court the power to issue a writ of mandamus was unconstitutional. More importantly, however, Marshall's opinion established that the Supreme Court has the authority, under the Supremacy Clause and Article III, 2 of the Constitution, to review legislative or executive acts and find them unconstitutional, i.e., the power of judicial review.


"The authority given to the Supreme Court by the act establishing the judicial system of the United States to issue writs of mandamus to public officers appears not warranted by the Constitution. The Judicial Department emphatically must say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the court must decide on each operation. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply."


That is the part many jurists like to cite; here is another piece, though, where marshal places limits on judicial authority. "It is the essential criterion of appellate jurisdiction that it revises and corrects the proceedings in a cause already instituted, and does not create the cause."


Though the Supreme Court justices are nominated by the sitting president and approved by the Senate, Marbury established SCOTUS as an actual, co-equal branch of government, not the servant of the other two. This fulfilled the vision of federalist 78, but to be clear, Marshall was not saying that the court could make laws, just that it could rule on laws passed by the other branches finding them unconstitutional.  


As Hamilton adds in Federalist 78, "The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority, such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing."


One of the things often intentionally misconstrued by progressives is the meaning behind Supreme Court decisions. Most are about the actual case before them and setting precedents and rules for the lower courts. As much as the left would like us to believe Dodd is about abortion, the importance of the ruling is who gets to decide where and when abortions are legal, as much as eco-warriors would like to imply that EPA vs. West Virginia, a recent law where the Supreme Court knocked down the power of the EPA to set specific prices, the real issue is the power of unelected federal agencies in the executive vs. the lawmaking ability of the Congress. 


We then come to two decisions that progressives have much misinterpreted. In the first case, we look at McCulloch v. Maryland (1819), Where the issue was whether Congress could establish a national bank and, if so, can a state tax this bank? The result was that the court held that Congress had implied powers to establish a national bank under the "necessary and proper" clause of the U.S. Constitution. However, the court also determined that United States laws trump state laws, and consequently, a state could not tax the national bank. Importance: The McCulloch decision established two essential principles for constitutional law that continue today: implied powers and federal supremacy.


The next was Gibbons v. Ogden (1824), in which Can states pass laws that challenge the power of Congress to regulate interstate commerce? The court held that it is the federal government's role to regulate commerce and that state governments cannot develop their commerce-regulating laws. Further, the court created an expansive definition for "commerce," reasoning that the term encompassed more than just selling and buying. In this case, the court determined that regulating water navigation was, in fact, an act that regulated commerce. The impact of Gibbons is still felt today as it gives the federal government a much-broader base to regulate economic transactions.


After a century of the Federal Reserve, Wilson's progressivism, FDR's New Deal, LBJ's Great Society, Nixon's EPA, George W Bush's No Child Left Behind, and Obama's Affordable Care Act, the concept of states reserving commercial power for themselves almost seems quaint if not anachronistic to a progressive. But our Republic is the United States of America. 

That will entail that certain powers have been accrued to the federal government and that such laws, such as Obamacare, can trump state laws. Yet we are not United America. Article 10 of the bill of rights is clear: The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.


And now we come to one of the most misunderstood (at least by today's progressive standards) laws passed by the Supreme Court. Not only was this law racist in a time when that concept was finally being recognized, but it was also unconstitutional, as our time and our court would know.  


That laws is Dred Scott v. Sandford.


In this pre-Civil War case, the question was whether Congress had the constitutional power to prohibit slavery in free territories. A second question was whether the Constitution gave African Americans the right to sue in Federal Court.


The 1857 Court answered no on both accounts: Congress could not prohibit slavery in territories, and African Americans also had no right to sue in Federal Court. In reaching these answers, the court, interpreting the Constitution as it existed before the Civil War Amendments (Constitutional Amendments 13, 14, and 15), abolished slavery and concluded that people of African descent had none of the rights of citizens. The court further reasoned that slaves were "property" and, therefore, could not be taken from their owners without due process.


 Obviously, the Dred Scott case became a central issue in the debate surrounding the expansion of slavery and further fueled the flames leading to the Civil War. For those who speak of a living constitution or that the Supreme Court can make up laws or declare this or that a right, Dred Scott is the ruling for them.  


Though liberals might shriek at the implication, this is what an unfettered court looks like.  

Dan McLaughlin writing for the National Review, notes, "The competition for the most unhinged and least accurate criticisms of Dobbs and the rest of this month's Supreme Court decisions have been fierce amongst progressive commentators, but Harold Meyerson of the American Prospect just might be the early leader in the clubhouse with a column entitled "Samuel Alito: The 21st-Century Roger Taney." Taney, of course, is the Chief Justice appointed by Andrew Jackson. Taney is best known for his opinion in Dred Scott v. Sandford, and Meyerson would like to compare Dobbs with Dred Scott. He begins thus: "He was confident that his sweeping opinion, backed by a majority of his Supreme Court colleagues, would decide the nation's most divisive issue once and for all, even though his position was so extreme it lacked the support of the American citizenry."


Of course, quite unlike Dred Scott, Dobbs did no such thing. In fact, it did the exact opposite. Taney sought to impose a permanent settlement of two issues in a stroke. One was lawsuits in federal court by slaves or former slaves seeking a declaration of their freedom on various grounds: In Dred Scott's case, the argument was that he had been taken to reside into a federal territory that did not recognize slavery and was, therefore, a free man once his residence was more than transitory. Taney, after a flawed review of Founding-era history, concluded that a black man could never be a "citizen" of any state within the meaning of Article III and, therefore, could never file suit in federal court (at least, not without invoking a basis for suit under federal law). The other issue was the power of Congress to ban slavery in the territories; Taney, invoking and effectively inventing the concept of "substantive due process," held that Congress lacked the power to prevent a slaveholder from bringing his property wherever he wanted. The ruling purported to invalidate the Missouri Compromise of 1820. It was touted by the aging, Pennsylvania-born Democrat in the White House as a kind of super-precedent settling the question of slavery in the territories. It was also widely seen as a prelude to a constitutional decision-forcing every state to allow slaves to be brought into their territory."


Writer Ed Whelan adds, "In 1857—Chief Justice Taney's ruling in Dred Scott marks the Supreme Court's first use of the modern liberal judicial activist's favorite tool—"substantive due process"—to invalidate a statute. In striking down the Missouri Compromise of 1820, which prohibited slavery in the northern portion of the Louisiana Territories, Taney nakedly asserts: "[A]n act of Congress which deprives a citizen of the United States of his liberty and property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law. 


The dissenters in Dred Scott invoke and properly apply the originalist principles that liberal judicial activists regard as abhorrent. As Justice Curtis declares rhetorically in exposing Taney's deviation from originalist principles: "[I]f a prohibition of slavery in a Territory in 1820 violated this principle of [due process], the ordinance of 1787 also violated it." Further: "[W]hen a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean." 


We will now turn from constitutional law to that brilliant societal commentator SpongeBob Square pants. Many years ago, when my son was around 8, we discovered the brilliance of this cartoon creature. It hearkened me back to my childhood days watching Friz Freleng and Chuck Jones Looney Tunes. SpongeBob could play on several levels like those genius cartoons, but I am not kidding myself. He screams, gets hit by anchors, and nearly drowns in his role of lifeguard. Why would undersea creatures need lifeguards? I don't know, but it was great fun. One episode was entitled "Opposite Day," wherein SpongeBob's uptight and put upon next door neighbor Squidward tells SpongeBob and his best friend Patrick that it is Opposite Day, and everything goes fine until the duo decides to take a holiday to the next level. A now-grumpy SpongeBob believes him and informs Patrick, who stops breathing, until SpongeBob exclaims, "not that opposite!" A montage of the two doing "opposite" things, such as talking backward and acting as Gary's pets, is then shown.

So why would I take the mortally serious decisions made by the Supreme Court and lower to the level of an animated Nicktoons feature? This all seems rather silly until one realizes this is happening in our country today—arguments on the level of a child's cartoon.  


Progressives extoll great concern over crime when it involves mass shooters while also wishing to defund police officers who would be among those best postioned to prevent crime. They are also selective about those they target with a heavy emphasis on those trying to obtain firearms legally as opposed to those, such as many shooters in say Chicago, doing so illegally. 


They talk of climate change Armageddon at fancy retreats to which they arrive on fossil-fueled driven personal jets. They worry about inflation and wish to alleviate this serious issue by printing and spending more money on various boondoggles that are really sops to their base. 


It is as if they say one thing, and their actions are the exact opposite. And on Dobbs, they decry that the Supreme Court took away a supposed right, calling the Supreme Court illegitimate, that an earlier Supreme Court put into place. And they called for Democracy when Dobbs enabled the voter to decide abortion rights, which sure sounds like Democracy to me.