One of, if not the main duty of the Supreme Court is safeguarding Constitutional guarantees. Is the Court, however, the most important political branch of the government as well? For those who followed the Third Presidential Debate one could surely surmise such was and is the case. From a rule of law perspective, the Court’s job is to make sure that laws do not abridge the Constitution. When describing the types of Justices the candidates hoped to nominate to the Court though, both Clinton and Trump went further than this, saying that they would appoint Justices that had concretized views on political issues potentially facing the Court (see here for the entire debate transcript).
Take Clinton’s statement for example that, “…it is important that we not reverse marriage equality, that we not reverse Roe v. Wade, that we stand up against Citizens United… That’s how I see the court.” Are these beliefs rooted in an expectation of faithful interpretation of the Constitution or in political values?
And then we have Trump’s remarks that “The justices that I am going to appoint will be pro-life. They will have a conservative bent. They will be protecting the second amendment.” Trump went even further when asked if the Court should overturn Roe v. Wade when he responded, “If we put another two or perhaps three justices on, that is really what will happen. That will happen automatically in my opinion. Because I am putting pro-life justices on the court.” Although for people who are keyed into the way the law works clearly this will not “automatically” occur (thank you Steve Vladeck), this is a bold statement about the values of potential nominees and Trump’s expectations for their actions on the Court.
Based on such statements, it is not surprising that the Court has become a main focus in the national discussion of the importance of who is elected the next President. Take for instance remarks by former House Majority Leader John Boehner. Boehner was described by Russell Berman in The Atlantic as one who, “…might be the last Republican in the country you’d expect to stick with Donald Trump right about now.”
The article continues by asking and partially answering the question, “So why is the retired speaker still voting for Trump? For the same reason as Cruz—the Supreme Court.”
Boehner backs up this premise in a recent interview with Fox News where he said:
“In my view, the election is pretty simple…The legislative process, the political process, is at a standstill and will be regardless of who wins. The only thing that really matters over the next four years or eight years is who is going to appoint the next Supreme Court nominees…The biggest impact any president can have on American society and on the American economy is who’s on that court.”
Is Boehner correct? Is this either the job of the Court or a role it will (or has) usurp(ed)? That was clearly not its intention of the Framers of the Constitution. Just take the words in The Federalist Papers #78:
“The judiciary…has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments…. It proves incontestably, that the judiciary is beyond comparison the weakest of the three departments of power.”
There is intention though and there are actions. The remainder of this post looks at the actions of the Court and goes on to detail what we may see with the Court under the next President. The focus is on judicial activism in two main forms: primarily in the Court overturning federal statutes and secondarily in the Court overruling its own precedent. These forms of activism encompass the actions that fall within the stated expectations of Trump, Clinton, and Boehner.
How activist has the Court been and how activist might we expect the Court to be? According to data compiled by the US Government Publishing Office and supplemented by data from the United States Supreme Court Database, the Court has overruled 177 federal statutes across the country’s history. Since 1789 that leads to an average of .78 federal statutes ruled unconstitutional per year. The peak year for this type of Court action was 1935 where the Court ruled six federal statutes unconstitutional.
The Court hasn’t been consistent in the number of statutes it overrules per year though. In fact, the Court did not overrule the first federal statute until 1803 with the landmark case Marbury v. Madison and did not overrule another federal statute until 1857 with the Dred Scott decision (a decision that has been put back in the headlines as it was recently cited in a brief by the State of Kansas defending a state abortion law).
Below is a chart showing the number of federal statutes the Court has ruled unconstitutional over time since the nation’s founding.
There is a clear upward trajectory in this chart as we move towards modern times. With the turn of the 20th century, the spikes of years where the Court ruled more federal statutes unconstitutional increase in height and frequency. In this way it appears that activism has increased over time peaking just before the 2000’s. On the other hand, there is a downswing and a slight upswing since 2000.
Another way to look at the number of statutes the Court rules unconstitutional is by Chief Justice.
Both charts show the upward swing since the 1950’s or when the Warren Court years began. The Roberts Court currently is at a point lower than other modern Courts but Justice Roberts likely has many more years left as Chief so this bar is likely on the rise.
Since 1950 there is a clear trend in the positive direction where the Court has ruled more federal statutes unconstitutional. A relevant related question then is if the Court has heard more cases over this period and if the trend in the Court’s statutory decisions are just a byproduct of a larger caseload. The chart below shows the number of opinions the Court has written each year since 1946 and the fraction of these opinions that are per-curiam (unsigned, often summary, and generally not the ones where we see the Court ruling statutes unconstitutional). The dot at the far right marks the 40 cases so far on the Court’s docket for 2016.
The Court has obviously had a lower caseload since the mid-1980’s. The current caseload is at a historically low point. Another way to view this is that cases alone do not explain the rise in the number of federal statute the Court rules unconstitutional.
A fuller perspective on this question of activism incorporates all statutes that the Court has ruled constitutional, both federal and state, as well as cases where the Court overturned its own precedent. This would encompass instances like Clinton and Trump portend where future Justices overturn current Supreme Court precedent (like Roe or Citizens United). The trend in these types of rulings since the mid-20th century can be found in the following chart (constructed with the aid of data from the United States Supreme Court Database):
This chart has a combined activist marker with the purple line. The purple line is highest in the 1960’s through the beginning of the 1980’s or during the Warren and Burger Court years. There is a clear decrease since the mid-1980’s and the Court is now in a territory with fewer such rulings than it has had since before the Warren Court years. According to this information the Court is actually decreasing in its overall activism. Whether this is as a product of decreased caseload or due to the Justices lack of interest in involving themselves in this political morass, this does not show the type of activism described by Representative Boehner or encouraged by the candidates.
So, if the Supreme Court is not likely any more activist now that it has been in recent years and is less activist than it has been in points in recent decades, how much power will the next President have to shift the direction of the Court’s rulings? With more appointments, Presidents have more opportunities to leave an imprint on the Court. This does not mean that the nominees will necessarily vote the way the President hopes. Past Justices like Stevens and Souter, appointed by Republican Presidents but voting predominately in the liberal direction on social issues are evidence of this.
Still, pundits describe how the next President will have at least one and possibly up to four appointments to make to the Court. This upper bound of this range, four, is more than most recent Presidents but is not historically unprecedented. Presidents Obama, George W. Bush, and Bill Clinton each appointed two Justices. Before them President Reagan appointed three Justices and Nixon four. Four remember, is the upper bound of what is thought plausible for the next President and this does not reach the historic heights of former Presidents as is depicted in the chart below.
President Roosevelt made the most appointments with eight Justices over the course of his 12 years in office. Even in more recent times, Dwight Eisenhower made five nominations to the Supreme Court. To be fair, one of these, Justice Warren did not turn out as President Eisenhower expected. Still, even if the next President appoints four new Justices, this may not be as cataclysmic a shift as some experts convey.
Here are a few points worth reiterating:
- The candidates are both making hyperbolic statements about their expectations for the next Supreme Court Justice(s).
- These statements combined with the active vacancy on the Court have led to rhetoric that describes the Court and its potential political power as likely beyond bounds the Court is willing to transcend.
- The current Court now is no more activist than it has been in the past and if anything is less so than it has been in recent years.
- Even if the next President makes several appointments to the Supreme Court this would not be historically unprecedented and is part of the normal ebb and flow process of reshaping the Court.
On Twitter @AdamSFeldman
Data compiled by @SamuelPMorse