Black Robes in a Marble Palace: A Look at the Supreme Court of the United States

"Justice Triumphant," circa 1935, by Leon Kroll. Mural in the Attorney General Conference Room, Department of Justice, Washington, D.C. Library of Congress (Public Domain)

On June 24, 2022, the Supreme Court of the United States ruled 6-3 in the Dobbs v. Jackson Women’s Health Organization case that the Constitution does not confer a right to abortion. That judgment overturned two previous cases that had come before the Court, Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey. The Court’s verdict means that voters and the states in which they live will now decide the legality of abortion.

This decision brought rage and violence from pro-abortion supporters. Some pregnancy centers were vandalized or firebombed, protests and marches were organized in cities across the country, and some, including politicians, either called for an insurrection or for Americans simply to ignore this sea change in the law. Some protesters broke federal law by gathering at the homes of certain justices in hopes of intimidating them. Still others called for abolishing the court altogether or for packing it with justices who might more closely reflect liberal beliefs and prejudices.

As they vented their feelings, railing against what they saw as injustice, few of these irate proponents of abortion seemed to understand either the history or the function of the Supreme Court. Some attacked the overturn of a previous Court decision as unprecedented, whereas in reality the Supreme Court has shot down past Court rulings more than 200 times. Others accused the Court of politics, failing to understand that the justices must weigh the law regardless of politics. Even now deceased justice Ruth Bader Ginsberg, for example, who was decidedly liberal in her politics outside of the courtroom, considered Roe v. Wade bad law.

Given these mistaken or ignorant views, it is worthwhile looking at the Supreme Court’s history, meaning, and place in our government and in our culture.

The Essentials

Cropped section from the third page of the Constitution of the United States. National Archives and Records Administration. (Public domain)

Article III, Section I of the Constitution declares, “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.”

This Article established our system of federal courts and also gave Congress the power to oversee the administration of those courts. As a result, for example, the Supreme Court has in the past ranged from five members to ten. The current number of nine justices has existed since just after the Civil War.

Section II of this same Article establishes the Court’s jurisdiction, basically granting it the power arbitrate on the constitutionality of such issues as treaties, suits between states, and other cases involving the United States as an entity.

A Gain in Function

A Portrait of Chief Justice Marshall, 1834, by Rembrandt Peale. Oil on canvas. Virginia Museum of Fine Arts. (Public Domain)

In Front Royal, Virginia, where I now live, you’ll find a highway named after John Marshall. Few residents, I suspect, could tell you much about Marshall. The same lack of familiarity probably holds true across the United States, but it was Chief Justice John Marshall who more than 200 years ago added to the Court the power of judicial review, which allowed the justices to examine and possibly invalidate actions of the legislative and executive branches. Incidentally, he was also the first justice to wear a black robe, dress that others on the court soon adopted.

In the 1803 case of Marbury v. Madison, Marshall and the young court faced a dilemma. In brief, just hours before handing over the White House to Thomas Jefferson, John Adams had appointed several federal justices, including William Marbury as justice of the peace in Washington D.C. Though the documents were in order, Jefferson was upset by what he regarded as an act of chicanery and refused to deliver them. Consequently, Marbury sued for his lost position.

Though Marshall and the Court ruled that Marbury had the right to his commission, with Marshall writing this opinion, they also ruled that the Constitution did not give them original jurisdiction over such a case, meaning that Marbury had come directly to the Supreme Court with his case instead of going to a lower court first. In other words, their review of the case found this maneuver unconstitutional.

Since then, the Court has possessed and exercised this right of judicial review. Though thousands of such cases are presented to the Court every year, only 70 to 100 or so of them actually come before the justices.

Ramifications of Court Decisions

The outcome of these Supreme Court cases can bring a whirlwind of change to American society and culture. Let’s briefly examine just three of these judgments and their consequences.

Wood engravings of Dred Scott and Harriet Scott from 1857 photographs by John H. Fitzgibbon. Library of Congress. (Public Domain)

Many constitutional scholars consider the 1857 Dred Scott decision the worst ever made by the Court. In this case, the justices ruled that a slave living in a free state nonetheless remained a slave, that African-Americans could never really be citizens of the United States, and that the Missouri Compromise of 1850, which declared a huge portion of the western territory free from slavery, was unconstitutional.

This case infuriated many, not just abolitionists, and fueled the flames that brought about the Civil War. The Court’s decision was later nullified by the 13th and 14th amendments to the Constitution.

In 1954, in the case of Brown v. the Board of Education of Topeka, the Court declared that segregation by race in the public schools was unconstitutional. Thurgood Marshall, who later became the first African-American appointed to the Supreme Court, was the main attorney representing the plaintiffs. This decision eradicated the idea of “separate but equal” educational facilities for whites and blacks, and soon helped break up segregation not only in the schools but in enterprises across the country.

Miranda v. Arizona, a 1966 case involving several defendants from different states, declared that the Fifth Amendment with its implicit right to remain silent applied outside of the courtroom, meaning that criminals could refuse to answer questions when arrested.

Anyone who has watched television shows about the police in the last 40 years has heard words issued directly by the Court: A defendant “must be warned prior to any questioning that he has the right to remain silent, that anything he says can be used against him in a court of law, that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires.”

The outcome of Ernesto Miranda’s case protected the rights of all those apprehended by the law.

Positive Law, Originalism, and the Constitution

"Scene at the Signing of the Constitution of the United States," circa 1940, by Howard Chandler Christy. Oil on canvas. United States Capitol. (Public Domain)

How judges view the law, the Constitution, and the function of the Court plays a part in their rulings.

My online dictionary defines positive law as “statutes which have been laid down by a legislature, court, or other human institution and can take whatever form the authors want.” On the other hand is originalism, “a legal philosophy that the words in documents and especially the U.S. Constitution should be interpreted as they were understood at the time they were written.”

These distinctions matter when interpreting the Constitution. During his discussion of Marbury v. Madison in “Land of Hope: An Invitation to the Great American Story,” Wilfred McClay cites Thomas Jefferson writing to James Madison in 1789 in favor of positive law: “No society can make a perpetual continuation, or even a perpetual law. The earth belongs always to the living generation.”

In Myron Magnet’s “Clarence Thomas and the Lost Constitution,” we find Justice Clarence Thomas’s opinion on this matter: “The Constitution means not what the Court says it does but what the delegates at Philadelphia and at the state ratifying conventions understood it to mean…We as a nation adopted a written Constitution precisely because it has a fixed meaning that does not change.”

Justice Thomas is clearly an originalist in matters of the Constitution, a position misunderstood as political by many of his detractors.

“The Godfather” popularized the line, “It’s not personal. It’s business.” Clarence Thomas might say, “It’s not politics. It’s law.”

Of Course, There Are Imperfections

Front façade of the United States Supreme Court Building highlighting the inscription, "Equal Justice Under Law." (Matt Wade/CC BY-SA 2.0)

Our American Republic is supposed to be governed by laws, not by men and women.

That’s the ideal, but the working reality is that our courts and legal system must deal with laws devised and administered by people. To interpret and adjudicate those laws then requires the human touch: judges, lawyers, and juries. That even our Supreme Court justices, highly-educated and well-versed in jurisprudence, can arrive at a split decision is a fact that illustrates the entrance of the human mind and spirit into the law.

As most of us know, ours is a government of checks and balances, with an executive, a legislative, and a judicial branch. This system, which has served us for nearly 250 years, may be the best form of governance ever devised. But it will never be perfect.

And the same holds true for our courts, a point we might bear in mind while delivering our criticisms.

A Truth We Must Never Forget

"Allegory of Justice," 1656, by Bernardino Mei. Private Collection. (PD-US)

Appointees to the Supreme Court must take not one, but two Oaths of Office. All federal officials other than the president take the first oath, which begins by requiring the office holder to “solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic …”

A Supreme Court justice must then render this Judicial Oath:

“I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. So help me God.”

Central to both oaths is the Constitution.

Few of us are satisfied with every decision handed down by the Supreme Court, but those today who threaten injury to our Supreme Court justices, or who want to pack the court, or who regard the Constitution itself as out-of-date and useless might want to pause and reflect on the freedoms they enjoy.

Those freedoms exist in part because of that Constitution and that Court. Together they form a bulwark defending liberty and justice against tyranny and oppression.