Curated by Jeffrey Sikkenga
Introduction
This volume presents 25 core decisions of the Supreme Court. Arranged in chronological order, they are meant to illustrate the Court’s understanding not only of the Constitution, but also of itself as an institution. These decisions can help students, teachers, and citizens to enhance their own understanding of the Supreme Court.
That is a worthwhile endeavor because few American institutions are as misunderstood as the Supreme Court. Everyone knows who the president is and has some idea of what he does. Everybody also knows that Congress is – subject to the Constitution – supposed to make the laws for the country. But what is the Supreme Court’s job?
For many years, we have been told that the Court is supposed to tell the country what the Constitution means. Supreme Court opinions are, it is said, the final authoritative interpretation of the Constitution–unless the Court changes its mind or the decision is overturned by a Constitutional amendment. Not surprisingly, the Court also subscribes to this article of faith. In 1958, for example, the Justices unanimously declared that it is “settled doctrine” that “the federal judiciary is supreme in the exposition of the law of the Constitution”, which means that the Court’s interpretation of the Constitution “is the supreme law of the land.” As Justice Jackson put it in his concurrence in Brown v. Allen (1953): “We are not final because we are infallible, but we are infallible only because we are final.”
This has not always been America’s understanding of the Supreme Court. Article III of the Constitution simply declares that “the judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” While the Constitution’s earliest critics predicted that one day the Court would become our constitutional oracle, the defenders of the Constitution articulated a coherent but limited view of the Court’s power. In The Federalist no. 78, Alexander Hamilton did not deny that the Supreme Court would have the power “to pronounce legislative acts void, because contrary to the constitution.” By “void”, however, Hamilton meant a judge “should pay no regard” to the law in the proceedings of his court – that is, the law would not operate inside a particular federal court. If the Supreme Court declared a law void, then the law would be inoperative in all federal courts, though not necessarily void for Congress or the executive in the exercise of their powers.
According to Hamilton, this kind of judicial review must be implied in the federal courts’ “judicial Power” because it is essential to “secure a steady, upright and impartial administration of the laws.” In a republic with a written constitution, judges must “regulate their decisions by the fundamental laws, rather than by those which are not fundamental.” The “complete independence of the courts of justice” is “peculiarly essential in a limited constitution,” but federal judges cannot maintain their proper independence if they must decide the legal case in front of them according to Congress’ or the president’s understanding of the Constitution, just as they cannot maintain their independence unless they hold their office during “good behavior” and receive pay that cannot be reduced while in office. Likewise, federal judges cannot dispense justice if they are bound to follow an unconstitutional law or executive action. Without judicial review, Hamilton warns, “all the reservations of particular rights or privileges [in the Constitution] would amount to nothing.”
In short, the Supreme Court’s power of judicial review was originally regarded as a constitutional shield to enable the federal judiciary “to defend itself” and the rights of citizens in federal courts. It was not a constitutional sword to be wielded by the Court to exclusively dictate the meaning of the Constitution to the rest of the country. Interpreting the Constitution is also a job for Congress, the president, the states, and ultimately the American people.
It is the hope of this volume that students, teachers, and citizens will read the decisions included here not to receive from the Supreme Court the meaning of the Constitution but to engage the Court – past and present – in a conversation about the meaning of our fundamental law. Such constitutional thinking is a vital act of self-government and essential to preserving American liberty and our great experiment in “government of the people, by the people, for the people.”