Powers of the Supreme Court
Ever since the Marbury v. Madison case (1803), it has been understood that the Supreme Court has the power to decide whether laws passed by Congress are constitutional. In other words, it has the authority to definitively interpret the meaning of the U.S. Constitution. According to many scholars, however, this authority is not final or absolute. In his book The Supreme Court and Constitutional Democracy (1984), John Agresto argues that in our system of checks and balances, there simply is no final, absolute "supreme" authority. Instead, the three branches of government continually vie against one another, each asserting what they believe to be their proper powers, and appealing to broad public support. It is in the very nature of our republican form of government, upholding the rights of minority dissenters, that some issues are never resolved once and for all.
Controversies over the proper role of the Supreme Court in our society are perfectly natural, and will never be fully resolved. Ironically, many modern liberals who look to the High Court as the the champion of progressive social reforms seem to have forgotten that this same institution has actually hindered social legislation during most of its history, and in any case, of the three branches it is the least susceptible to democratic influence. The fact that the Supreme Court has become so powerful explains why the arguments over nominees have become so heated and melodramatic in recent decades. (Excerpted from a paper written in a graduate seminar under Prof. Martha Derthick at the University of Virginia, 1991.)
Ideological history of the Supreme Court
For much of the nation's history until the 1940s, the Supreme Court was a conservative institution, refraining from making rulings that might upset the social-political order. After the showdown with President Franklin Roosevelt in 1938, however, the Court gradually became more liberal, and was decidedly on the left side of the political spectrum from the 1950s through the 1970s. The election of Ronald Reagan in 1980 brought about a rightward shift, though some of his appointees (and those of his successor, George H.W. Bush) turned out to be liberals as well. For nearly two decades, from 1992 until 2008 there was a slight conservative slant on the Supreme Court, after which the liberals regained rough parity.
Confirmation battles in the U.S. Senate
Over the course of U.S. history, twelve presidential nominees to the Supreme Court have been rejected by the U.S. Senate, mostly in the 19th Century. Two of President Nixon's nominees were rejected (Clement Haynsworth and Harrold Carswell), and one of President Reagan's nominees was rejected (Robert Bork, in 1987). During the administration of George W. Bush, Democratic opposition to judicial nominations was so strong that vacancies caused widespread delays in court proceedings. In response, the Republicans threatened to invoke the "nuclear option," voiding the process of filibuster by which minority rights are protected in the Senate. In the end, however, a compromise was reached to avoid such a drastic step.
(ranked by seniority, after the Chief Justice)
- Chief Justice: John Roberts (2005)
- Clarence Thomas (1991)
- Stephen Breyer (1995)
- Samuel Alito (2006)
- Sonia Sotomayor (2009)
- Elena Kagan (2010)
- Neil Gorsuch (2017)
- Brett Kavanaugh (2018)
- Amy Coney Barrett (2020)
Recent confirmation battles
Associate Justice Antonin Scalia, who began serving on the Supreme Court in 1986, passed away on February 13, 2016, leaving a vacancy. There ensued a sharp dispute over whether President Obama should nominate a successor that year, or wait until after the next election do so. (In 1992 then-Senator Joe Biden had stated that Supreme Court vacancies should not be filled during presidential election years, to avoid political acrimony.) Senate Majority Leader Mitch McConnell declined to hold hearings for President Obama's nominee, Merrick Garland. After President Trump was elected and inaugurated the following January, he nominated Neil Gorsuch, who was confirmed in April 2017. (To get this through, Senate Republicans did away with the filibuster for Supreme Court nominations, which the Democrats had done for lower-level federal judicial nominations in October 2013.) In mid-2018, Anthony Kennedy resigned, and Brett Kavanaugh was soon nominated and confirmed in September, after some angry debates and accusations of inappropriate conduct when he was younger. In September 2020, Ruth Bader Ginsburg (who had served since 1994) passed away, and President Trump quickly nominated Amy Coney Barrett to fill the vacancy, over strong objections from Democrats. After a few days of hearings, the Senate confirmed her on October 26.