The History of
The Supreme Court
Addressed the necessity
of an independent
The Appointment Process
Appointed for life during good
Appointed by the President
Subject to Senatorial consent.
In The Beginning…
Judiciary Act of 1789
Established the three tiered dual court system.
Set the size of the Supreme Court at six.
Section 25: Gave Supreme Court appellate
jurisdiction over federal questions arising in
state supreme courts.
Granted Supreme Court with original
jurisdiction over issuing writs of mandamus.
Step One Step Two
Step Three: Supreme
Case is appealed to the Court rules
Supreme Court. on the case.
The Court will either: Step Four
1. Affirm lower-court ruling
2. Remand case back to lower
court for reconsideration.
3. Agree to put case on
Supreme Court Procedure
Read Justice Brennan’s How the Supreme Court Arrives at Decisions
Court Players and Opinions
Petitioner: Party appealing lower court’s decision
Respondent: Party defending lower court’s decision
Majority opinion - Court’s decision on a case and sets out
Concurring Opinion - is in agreement with the majority
opinion but is written to add or emphasize a point.
Dissenting Opinions - Written by justices who do not agree
with the Court’s decision.
Precedents: Standards set by the Court’s decisions to be
used in interpreting future cases.
Two Problems Facing the First
1. Separation of Powers: Defining judicial power
of the federal courts vis-à-vis the other
Would not play advisory role to political branches.
Would decide legal questions not political ones.
2. Federalism: Defining judicial power of the
federal courts vis-à-vis the states.
Amendment 10 vs. Article VI
The Two Marshall Courts
1. 1801-1824: Expansion of court’s power through
Marbury v. Madison = Judicial Review
McCulloch v. Maryland = Bank of the United States
The Power to tax is the power to destroy!
Gibbons v. Ogden = Competition, not monopoly, will secure
2. 1824-1835: The retreat.
The Cherokee Cases and Andrew Jackson
Contracts Clause: bending to state will
What are the five similarities of the Marshall
and Taney Courts:
1. Limited government secured individual liberties
2. Necessity of effective authority within state and
3. Interpreted the law to benefit capitalism
4. Refused to disrupt social order
5. Expanded federal power
Dred Scott v. Sanford
Remember, Taney was a
Ruled against Scott
Decision stood on interstate
Reconstruction and the Court
Reconstruction Amendments: 13th, 14th, 15th
National laws prohibiting states from depriving citizens of basic rights.
How did these cases throw the 14th amendment equal protection clause for
Louisiana butchers contested state health codes as depriving right to
freely practice their occupations.
The court found that the 14th amendment barred states from depriving
only those “privileges and immunities” that Americans possessed as
United States citizens as distinct from those they held as state citizens.
Racism in the Court
1898 – The Court created “Separate But Equal Doctrine,” in Plessy v.
Does this jive with the 14th Amendment’s equal protection clause
The Progressive Era
Industrial Growth + Technological Advancement
= Global Marketplace
Major Issues Addressed by the Court in the
1. Laissez-faire constitutionalism
2. Supported Dual Federalism: states given extraordinary
leeway in regulating business.
3. Liberty of Contract
See Lochner v. New York…
The Progressive Era
Liberty of Contract: Article I, Section 10, Clause 1
Lochner v. New York
Lochner = bakery owner
New York statute limiting hours bakers could
S. Ct. found statute in violation of 14th amendment
securing residents rights to enter into contracts free
from governmental regulation.
Affirmed laissez-faire doctrine and capitalism.
The Taft Court: The Roaring 20’s
Liberty of Contract v. Police Power of States
1923 - Adkins v. Children’s Hospital: Court struck down
a minimum wage law for women.
In light of the 19th Amendment, women were no
longer in need of price fixing.
What is police power?
Obligation of state government to provide for the
general welfare of all residents.
The Taft Court: The Roaring 20’s
Civil Liberties Prevail
Incorporation Argument: Bill of Rights
guarantees should be extended to protect
citizens from the states – see handout.
Nationalization of state criminal law
Powell v. Alabama (Scottsboro cases)
Majority declared that the 14th amendment’s
DP clause required fair trials for state criminal
The Crash, The New Deal and
Chief Justice Charles E. Hughes - 1930
Pro-business attitude collapses with the Market.
By 1937, FDR had filled the bench with liberals.
New Deal legislation was routinely upheld.
Protecting civil liberties takes a front seat.
Chief Justice Harlan F. Stone - 1941
Korematsu v. United States: argued under war
powers of the president.
The Vinson Court: The Cold War
Chief Justice Fred M. Vinson - 1946
Judicial restraint abandoned freedom of thought,
association, and expression
Dennis v. United States - 1951
Clear and Present Danger Test created to reason conviction of
Separation of Powers Dilemma
Youngstown Sheet & Tube Co. v. Sawyer - 1952
Court overruled Truman’s seizure of nation’s steel mills to avoid an
impending steelworker strike on the eve of the Korean conflict.
Further extended Incorporation
The Warren Court:
The Civil Rights Movement
Chief Justice Earl Warren – 1953
Brown v. Board of Education decision
Overturned Plessy v. Ferguson
Fulfilled “cold war imperative”
Major facilitator of nationalizing criminal
procedure – see handout
Group Rights over Individual Rights
Warren Burger – 1969
Delivered majority opinion in Nixon v. U.S. forcing the president
to hand over the “tapes”.
Advocate of judicial restraint
William Rehnquist – 1986
As a law clerk to Justice Jackson, Rehnquist suggested the Court
uphold Plessy in the Brown case.
His record shows support for law enforcement, strict
incorporation, states-centered federalism.
The Roberts Court
What will be his legacy?
Read Time article