2.10—The Court in Action

This section continues to consider the debate about the Court’s legitimacy, this time by examining the actions of SCOTUS justices and controversial majority opinions. This section was created prior to the Dobbs decision that overturned Roe v. Wade, which is presented in the section as a controversial majority decision.

What you need to learn

How has the Court’s actions and decisions lead to debates about the legitimacy of the court?

Two Types of Justices

judicial activism

judicial restraint

Controversial Decisions & Court’s Legitimacy

Dred Scott v. Stanford

Korematsu v. The United States

(Roe v. Wade)

Checks on the Judicial

This is actually for section 2.11, you can stop his video around 5:48 when he moves to this topic.

The Court in Action

Essential Question: How have changes in the Supreme Court over time led to debates about the legitimacy of the court?

The Supreme Court is known for its unique customs and powerful rulings. Federal judges are appointed for life, directly unaccountable to any voter. The Supreme Court is often challenged when it renders unpopular decisions as well. Yet, it has created a lasting legacy with precedents it has set and law that it has shaped.

An Evolving Court

Since the Marshall Court, the Supreme Court’s rulings have both caused and reflected changes in society because of the individual justices who have come and gone. Yet the Supreme Court has experienced more continuity than change. The Court’s customs are established through consensus and remain over generations.

Early Courts to the New Deal

Chief Justice Roger Taney replaced John Marshall. The Court’s operation changed somewhat with new leadership and new members. In 1837, Congress increased its membership to nine justices to ease the workload and created additional circuits. It also took up questions regarding slavery during the antebellum period. Taney and his fellow justices were determined to protect slavery as a state’s right and upheld the congressional Fugitive Slave Act of 1850.

In 1857, as the North and the South grew further apart, the Court decided the Dred Scott case. The slave Dred Scott had traveled with his master into free territory and claimed, with the help of abolitionist lawyers, that having lived in free northern territory, he should have his freedom. Taney and the Court’s majority shocked abolitionists with their decision and left one of the Court’s worst legacies. The Dred Scott v. Sandford ruling held that Scott wasn’t even a citizen and thus had no legal right to be a party in federal court, much less the country’s top tribunal. The Court went further, stating that a slave owner’s constitutional right to due process and property prevented government from depriving him of that property, regardless of where he traveled. Abolitionists and anti-slavery advocates in the territories immediately challenged the Court’s legitimacy.

Corporations and the State

In the late 1800s, the Court examined concerns over business, trade, and workplace regulations as the nation had experienced vast economic expansion during the Industrial Revolution. Congress and state legislatures attempted to address the unfair and unsafe working conditions while facing strong resistance from business leaders who argued for more of a laissez-faire, or minimal government regulation, approach. When pressed by corporations to toss out worker protection laws, the Court had to decide two principles: what the Constitution permitted government to do and which government-state or federal-could do it.

The Court began to overturn various state health, safety, and civil rights laws, and in so doing, it shaped social policy. It threw out a congressional act that addressed monopolies. It also ruled Congress’s income tax statute null and void. By the turn of the century, the Court had developed a conservative reputation as it questioned business regulation and progressive ideas. In Lochner v. New York (1905), the Court overturned a New York state law that prevented bakers from working more than 10 hours per day. The law was meant to counter the long hours required in an era before overtime pay.

During the Progressive Era, the Court made additional exceptions but quickly returned to a conservative, strict constructionist view of business regulation. A strict constructionist interprets the Constitution in its original context, while a liberal constructionist interprets the Constitution as a living document and takes into account changes and social conditions since ratification. The Court held that Congress could not use its commerce power to suppress child labor. The Court’s conservative viewpoint turned further to the right, taking social policy with it, when former president William Howard Taft became chief justice. It ruled that minimum wage law for women also violated liberty of contract.

The New Deal and Roosevelt’s Plan

During the Depression, the Court transformed. Charles Evans Hughes replaced Taft as chief justice in 1929. Hughes managed a mixed group with four strong conservatives, nicknamed the “Four Horsemen,” who overturned several New Deal programs. The Court struck down business regulations, invalidated the National Recovery Act (1933), and ruled against New York’s minimum wage law.

After his 1936 landslide re-election, Franklin Roosevelt (FDR) responded to the rebuffs of the conservative Court by devising a plan to “pack the Court.” He proposed legislation to add one justice for every justice then over the age of 70, which would have allowed him to appoint up to six new members. FDR claimed this would relieve the Court’s overloaded docket, but in reality, he wanted to dilute the power of the conservative majority who had been unreceptive to his New Deal proposals. The sitting Court denied any need for more justices. Conservatives and liberals alike believed such a plan amounted to an attack on the Court’s independence. Members of the Senate Judiciary Committee said,

“The bill is an invasion of judicial power such as has never before been attempted in this country.”

The Court changed ideologically, however, when one of the conservatives took an about-face in West Coast Hotel v. Parrish (1937), which sustained a Washington state minimum wage law. Justice Owen Roberts became “the switch in time that saved nine,” meaning that there was no longer any need to try to pack the Court with additional justices. After the West Coast Hotel decision, the Court upheld every New Deal measure that had come before it. Roosevelt pressed ahead with more legislation, including a national minimum wage that has withstood constitutional scrutiny ever since. Winning four elections, he was able to appoint nine new justices to the Court who were friendly to his policies before his death in 1944.

A Court Dedicated to Individual Liberties

In the post-World War II years, the Court protected and extended individual liberties. It delivered mixed messages on civil liberties up to this point-holding states to First Amendment protections while allowing government infringements in times of national security threats. For example, it upheld FDR’s executive order that placed Japanese Americans in internment camps after the Japanese attack in 1941. (See Topic 2.6 for more about the 1944 Korematsu v. United States case.) After that, however, the Court followed a fairly consistent effort to protect individual liberties and the rights of accused criminals. The trend crested in 1973 when the Court upheld a woman’s right to an abortion in Roe v. Wade. (See Topic 3.9.)

The Warren Court

The Court extended many liberties under Chief Justice Earl Warren after President Dwight Eisenhower appointed him in 1953. As attorney general for California during the war, Warren oversaw the internment of Japanese Americans, and in 1948, he was the Republican’s vice-presidential nominee. But any expectations that Warren would act as a conservative judge were lost soon after he took the bench.

Warren’s legacy did not please traditionalists because his Court overturned state policies created by democratically elected legislatures. The controversial or unpopular decisions led some people to challenge the Court’s legitimacy. Several Warren Court decisions seemed to insult state political cultures and threaten to drain state treasuries. Some argued that Earl Warren should be impeached. The Warren Court had made unpopular decisions, but it had not committed impeachable acts-such as taking bribes or failing to carry out the job–so only justices’ retirements or deaths could change the Court’s makeup.

The Burger Court

President Richard Nixon won the 1968 election, in part by painting Warren’s Court as an affront to law enforcement and local control. When Warren retired, Nixon replaced him with U.S. appeals court justice Warren Burger. Burger by no means satisfied Nixon’s quest to instill a conservative philosophy and largely failed in judicial leadership. While lacking Warren’s leadership skills, Burger kept the Supreme Court on a somewhat similar path to the one Warren had begun.

In Roe v. Wade, Burger joined six others on the Court to outlaw or modify state anti-abortion laws as a violation of due process. With this ruling, a woman could now obtain an abortion, unconditionally, through the first trimester of pregnancy. He also penned a unanimous opinion to uphold lower-court-ordered school busing for racial enrollment balance.

The chief justice often couldn’t round up enough agreement to get a five-justice majority. Thus, cases went undecided while the Court took on additional ones. The justices became overworked and took as many as 150 appeals in a year. Supreme Court historian and former clerk Edward Lazarus refers to Burger as “an intellectual lightweight” who had “alienated his colleagues and even his natural allies.” By 1986, Burger had proven pretentious and chafing to his colleagues, and he had simply become tired. At the press conference announcing his retirement, a reporter asked him what he would miss most on the Court. Burger stalled, sighed, and said, “Nothing.”

The Rehnquist Court

At the same press conference, President Reagan elevated Associate Justice William Rehnquist to the chief position. Based on Rehnquist’s strict constructionist views, President Nixon had nominated Rehnquist for the High Court. The Senate did not confirm him easily and accused him of racism, as he had recommended upholding the “separate but equal” doctrine when clerking for a justice in the early 1950s en route to the Brown ruling. This same controversy arose in 1986 as he accepted the chief justice position.

Initially, Rehnquist found himself in dissent and all alone on several cases, earning him the nickname “the Lone Ranger.” When Rehnquist took over for Burger, however, additional strict constructionists soon joined him. He improved the conference procedures and decreased the Court’s caseload. All the justices, liberals and conservatives alike, welcomed the changes. In the 1990s, the Rehnquist Court upheld states’ rights to place limitations on access to abortions and limited Congress’s commerce clause authority. In addition to efficiency, Rehnquist had ushered in another ideological shift.

Legislating after Unfavorable Decisions

Many people believe the Supreme Court’s decision is final, but sometimes it is not. In many precedent-setting decisions, the High Court interprets language in the Constitution. That language can be subsequently changed through constitutional amendments.

The passage and ratification of the obscure Eleventh Amendment, which further defines court jurisdiction, was in response to the 1794 ruling in Chisolm v. Georgia. Anti-Federalists and states’ rights advocates had warned that the new federal courts might overpower the state courts, and they saw the decision in Chisolm v. Georgia as such an encroachment. South Carolina residents seeking to recoup war debts from Georgia’s government sued in federal court. Georgia denied the federal court’s authority and refused to show up. The Supreme Court ruled in Chisolm that federal courts had jurisdiction over such cases and opened the door for additional pending suits against other states. In response, Congress members, especially those from the states involved in the lawsuits, proposed the Eleventh Amendment. It prohibits the federal courts from considering certain lawsuits against states and excuses state courts from hearing some suits against the state if based on federal law. The Eleventh Amendment is the only amendment to alter the judicial branch’s jurisdiction.

However, additional amendments that addressed the substance of law have been proposed and ratified as reactions to unfavorable Supreme Court decisions. For example, following the Civil War, the passage of the Fourteenth Amendment effectively overturned the Dred Scott decision by guaranteeing citizenship to those born in the United States and requiring states to afford their citizens “equal protection.” Later in the 1800s, Congress passed a national tax on individual incomes. Because the language in Article I, Section 8 is unclear on the types of taxes Congress can create and the manner in which these are to be applied, the Court struck down the law. However, later in the Progressive Era, enough support for such a tax enabled Congress to propose and the states to ratify the Sixteenth Amendment (1913) to assure this power to create the national income tax.

Amending the Constitution is the surest way to get around a Supreme Court decision, but it is a difficult task. In recent years, movements have surfaced to amend the document to stop abortions, to prevent same-sex marriage, and to enable legislatures to criminalize flag burning—all attempts to overturn unpopular Supreme Court decisions—and all failed. A more practical path is for Congress or state legislatures to pass laws that the Supreme Court has declared unconstitutional in a slightly different form.


Courts decide principles and order citizens or government entities to take action or refrain from action. The executive branch must then enforce this law. On a basic, local level, a state judge may issue a restraining order, but the police must do any necessary restraining.

When a court orders, decrees, or enjoins (issues an injunction to) a party, it can do so only from the courtroom. Putting a decision into effect is another matter. Judges alone cannot implement the verdicts and opinions made in their courts. Nine robed justices in Washington simply cannot put their own decisions into effect. They require at least one of several other potential governing authorities—the president, U.S. marshals, regulatory agencies, the military, or other government agencies—to carry out their decisions.

Legislatures may have to rewrite or pass new laws or finance the enforcement endeavor. The implementing branch, charged with putting a court’s decision into effect, doesn’t always cooperate with or follow court orders.

When the Supreme Court makes decisions, it assesses potential enforcement and cooperation. When John Marshall’s Court deemed that Georgia could not regulate Cherokee Indian lands in its state because such regulation was exclusive to the federal government, President Andrew Jackson strongly disagreed and allegedly said, “John Marshall has made his decision, now let him enforce it.”

In the late 1950s, after the Court ruled that a Little Rock high school had to integrate, the executive branch sent federal troops to escort the claimants into the formerly all-white school.

How Cases Reach the Supreme Court

The Supreme Court is guided by Article III, congressional acts, and its own rules. Congress is the authority on the Court’s size and funding. The Court began creating rules in 1790 and now has 48 formal rules, as well as less formal customs and traditions that guide the Court’s operation. The Court has both original and appellate jurisdiction. Only in rare situations does the Supreme Court exercise original jurisdiction and thus serve as a trial court, typically when one state sues another over a border dispute or to settle some type of interstate compact.

As the nation’s highest appeals court, the Supreme Court takes cases from the 13 U.S. circuits and the 50 states. Two-thirds of appeals come through the federal system, directly from the U.S. circuit courts, because the Supreme Court has a more direct jurisdiction over cases originating in federal district courts than in state trial courts.

Like the circuit courts, the Supreme Court accepts appeals each year from among thousands filed. The petitioner files a petition for certiorari, a brief arguing why the lower court erred. The Supreme Court reviews this to determine if the claim is worthy and if it should grant the appeal. If an appeal is deemed worthy, the justices add the claim to their “discuss list.” They consider past precedents and the real impact on the petitioner and respondent. The Supreme Court does not consider hypothetical or theoretical damages; the claimant must show actual damage. Finally, the justices consider the wider national and societal impact if they take and rule on the case. Once four of the nine justices agree to accept the case, the appeal is granted. This rule of four, a standard less than a majority, reflects courts’ commitments to claims by minorities.

Opinions and Caseload

Chief Justice John Marshall’s legacy of unanimity has vanished. The Court comes to a unanimous decision only about 30 to 40 percent of the time. Therefore, it issues varying opinions on the law. Once the Court comes to a majority, the chief justice, or the most senior justice in the majority, either writes the Court’s opinion or assigns it to another justice in the majority. Typically, those justices who write the majority opinion—reflecting the Court’s ruling—have expertise on the topic or are obviously passionate about the issue. Like a statute for Congress or an executive order for the president, a court ruling is the judicial branch’s contribution to the nation’s law. The majority opinion sums up the case, the Court’s decision, and its rationale.

Justices who differ from the majority can draft and issue differing opinions. Some may agree with the majority and join that vote but have reservations about the majority’s legal reasoning. They might write a concurring opinion. Those who vote against the majority often write a dissenting opinion. A dissenting opinion has no force of law and no immediate legal bearing but allows a justice to explain his or her disagreements to send a message to the legal community or to influence later cases. On occasion, the Court will issue a decision without the full explanation, known as a per curiam opinion.