Constitutional Backgrounder on The Supreme Court

The following text is taken from  the official website of the Supreme Court:

  •      Article III, §1, of the Constitution provides that “[t]he 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.” The Supreme Court of the United States was created in accordance with this provision and by authority of the Judiciary Act of September 24, 1789 (1 Stat. 73). It was organized on February 2, 1790.

 

  •      Members of the Supreme Court are separately nominated and appointed by the President subject to advise of the Senate. To ensure an independent Judiciary and to protect judges from partisan pressures, the Constitution provides that judges serve during “good Behaviour,” which has generally meant life terms. To further assure their independence, the Constitution provides that judges’ salaries may not be diminished while they are in office.

 

  •      The number of Justices on the Supreme Court changed six times before settling at the present total of nine in 1869. Since the formation of the Court in 1790, there have been only 17 Chief Justices* and 100 Associate Justices, with Justices serving for an average of 16 years. Despite this important institutional continuity, the Court has had periodic infusions of new Justices and new ideas throughout its existence; on average a new Justice joins the Court almost every two years. President Washington appointed the six original Justices and before the end of his second term had appointed four other Justices. During his long tenure, President Franklin D. Roosevelt came close to this record by appointing eight Justices and elevating Justice Harlan Fiske Stone to be Chief Justice.”

 

  •      Hamilton had written that through the practice of judicial review the Court ensured that the will of the whole people, as expressed in their Constitution, would be supreme over the will of a legislature, whose statutes might express only the temporary will of part of the people. And Madison had written that constitutional interpretation must be left to the reasoned judgment of independent judges, rather than to the tumult and conflict of the political process. If every constitutional question were to be decided by public political bargaining, Madison argued, the Constitution would be reduced to a battleground of competing factions, political passion and partisan spirit.

 

  • Despite this background the Court’s power of judicial review was not confirmed until 1803, when it was invoked by Chief Justice John Marshall in Marbury v. Madison. In this decision, the Chief Justice asserted that the Supreme Court’s responsibility to overturn unconstitutional legislation was a necessary consequence of its sworn duty to uphold the Constitution. That oath could not be fulfilled any other way. “It is emphatically the province of the judicial department to say what the law is,” he declared.”

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