As promised, I propose in this posting to bring light to one of the many mysteries of the Court.  But first the preliminaries.  I am sure that, you know the history and jurisdictional authority of the Supreme Court, so I will only add a thought or two to refresh your memory.  Article III, Section 1 says in part, “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….”.  It goes on for the next couple of sections to talk about jurisdictional matters.  You know the stuff, suits between the states, suits between the states and the federal government, impeachment, treason…  That’s it.  That’s pretty much all it says.  No specified number of judges.  Nothing about a Chief Justice.  Oh, it does say that they (the aforementioned judges) should hold their offices “during periods of good behavior”, and that we couldn’t cut their pay while in office.  Wow, from such humble beginnings…

So how did we get here from there?  For example, what’s the magic with nine, why do they get to opine about Obamacare et al?  The number nine is easy, well actually not so easy to explain.  It started out as five in 1801, then went to seven, and even ten in 1807, then back to 10 in 1866.  In the next couple of years attrition had its way and the Court numbered eight.  In 1869,  the Congress, in its wisdom added one more and limited it to nine via the Judiciary Act of 1869.  And there it has stayed, but it almost didn’t.  In 1937, FDR, in an effort to bend the court to his will regarding  the New Deal put forth a plan to add more justices to the court in order to stop the adverse decisions being rendered by a conservative Court.  Public opinion ran against FDR and he abandoned his plan, but only after the complicated calculus of the court began to change as well, and he had survived several challenges to his legislative agenda.  So now we are at a court of nine of our finest judicial minds.  BTW, no where is it stipulated that a justice must have legal training, nor does it say that we can or cannot or must have women or a certain number of Catholics or Harvard graduates.  But certain standards have evolved.  To wit:  all one hundred twelve current and past justices have been admitted to some legal bar or other and suffered some form of legal training.   There have been exactly three women, two blacks, one hispanic, eight jews, and a partridge in a pear tree.  Seriously, of the one hundred twelve, over half have gone to the “Ivies” for their legal training, and, of the current Court, all went to either Harvard or Yale.  Hmmm!  Maybe we’ve found the problem here.  But can they play football?  Just kidding.  These are all really smart men and women, just not too many women or jews, southern baptists or graduates of Iowa State (for example) .

Jurisdictional matters are another matter still not entirely resolved.  It is at least clear now that the Supreme Court is the final arbiter of whether the laws of the land, duly legislated by state or federal bodies, are in accord with the Constitution.  It wasn’t always so.  Until Marbury v. Madison was decided in 1803, it wasn’t clear that there was any basis for the Court’s judicial review of the constitutionality of laws enacted by the Congress or a state legislative body.  Marbury settled that.  The spirit of Marbury lives on today as the Court has continuously broadened its authority in the judicial review of legislation.

So here’s the important question for you.  Since the Constitution doesn’t change, except through the amendment process, how can the court reverse itself on the basis of the Constitution?  Let me give you an example.   In 1896 the Court validated the concept of “separate but equal” in Plessy v. Ferguson.  This case dealt with the ability of the enlightened state of Lousiana to determine the right, or lack thereof, for one Mr. Plessy to occupy a “white’s only” railroad car.  Interestingly Plessy was seven-eighths caucasian, but it was nevertheless ruled that due to the “one drop” of negro blood rule in Louisana, he had no right to occupy said railroad car because a car of equal quality and functionality was available to him.  Ipso facto…separate but equal.  And so it became the law of the land for over fifty years.  Fast forward to 1954 when, without the benefit of constitutional amendment or even intervening legislation, the Court found in Brown v. Topeka Board of Education that the principle of “separate but equal” was no longer supported by the Court’s reading of the Constitution and did not apply to public education, and by extension, all other public facilities.     What exactly happened in those fifty-eight years? What different lens did the Court of 1954 use to read the Constitution?  What was the basis for this momentous change?  Of course, a lot happened in the interregnum but nothing that would provide a legal basis for the change.  And I suppose the technology of eyeglasses had changed as well, but not to the extent necessary to redefine the Constitution.  Is it judicial activism?  Is this legislating from the bench?  Did they reinterpret the words of the founding fathers?  Did they ignore the original intent of the framers?

There are, of course, many other examples of the Court reversing field without the support of intervening events, but I won’t bore you with the details.  Just trust me on this.  One of the sacred principles of constitutional law is precedent or as they say in the Halls of Ivy “stare decisis”.  The Brown case turned precedent on its head.  It ruled exactly the opposite of the Plessy case as well as many succeeding cases…until 1954 that is.  It calls into question if any ruling of the Court can ever be counted on for the long haul.  Will Obamacare stand?  Did Bush really defeat Gore?  Will corporations always enjoy first amendment rights as do individuals?  I dunno for sure, but the good news is that if one were to survey the more than thirty thousand cases decided by the court, one could conclude that like the arc of history the rulings of the Court, over time, suggest an inexorable tilt towards a progressive view of the world (notwithstanding justices Scalia and Thomas).  The Court has, for the most part, read the Constitution so as to accord more rights to more people than did their predecessor Courts.  If this is judicial activism, count me in.

It’s hard not to conclude that Justices, like we humble citizens, put their pants on one leg at a time.  Just as we, they are affected by evolving societal values.  Just as we, they are public creatures, motivated in part, by what their fellow creatures believe to be moral and just….today.  Just as we, they want to stay true to the words of the framers, but know that “times, they are achanging”.  They, too, change, for better or worse, with the times.  The political makeup of the court ebbs and flows, and right now it appears to be flowing down the river, but, over time, the Court has proved, again and again, that it will right itself and its rulings.  Stare decisis be damned.

Speaking of worst…who is, hands down, considered to be the worst Supreme Court justice of all time?  What?  You say Clarence Thomas.  Of course, I understand your sentiment, but you are way wrong.  I’m not going to make this easy for you.  I will only say that he was with the majority on Dred Scott (which put him on the wrong side of history), was also the biggest bigot ever to don a robe (outside of a KKK member), was from Kentucky, and….well you can find him without much effort if you want to.  All of the current crowd look pretty good compared to this boob.

The wonder of the Court is that it can survive the occasional bigot, it can tolerate the silence of Clarence Thomas, it can get past the attempts to filibuster new potential members, it can survive bad rulings, and it can even endure rulings rooted in partisan ideology.  It may not be perfect, but it is perfectly suited to our system of government .

Inscribed on the front of the Supreme Court Building are the words, “Equal Justice Under Law”.  While the decisions of the Court have sometimes fallen short of these words,  I’m comforted that these words remain both inspiration and aspiration for this and all succeeding Courts.