Robbins: How the Supremes keep America’s ship steady
Originally, there were six. Their numbers did not increase by some act of corporeal reproduction. Instead, you can blame it on Congress. At various times — stretching back to 1789 — there have been six, 10, or the current nine.
In 1937, in an effort to stack the court with justices more friendly to his “New Deal,” President Franklin Roosevelt attempted to prevail upon the Congress to pass legislation that would allow a new one to be added — for a total of up to 15 — for one over the age of 70 who opted not to retire. Congress nixed his plan.
The Supreme Court of the United States (SCOTUS, in the popular vernacular), convened for the first time in February 1790. At first, the justices met in the Big Apple which was not so robust an apple at the time, then Philadelphia, then, finally, Washington D.C. where they have hung their hats and ermine robes since 1801. Not until 1935, however, did the SCOTUS have its own, permanent home, the imposing marble structure located at One First Street NE in D.C. and designed by the renowned architect, Cass Gilbert Sr.
Although since 1869, the number has been nine — one chief justice and eight associate justices — the reason that the number yo-yo-ed over its early years had not a thing to do with the Duncan Toy Company. Rather, what it had to do with was the fact that the Constitution itself left it to Congress to determine how many justices there should be. If you have read my previous columns relating to the Constitution, you will have gleaned that the Constitution is an instrument of both surprising brevity and flexibility. What the founders wanted was a Constitution that could breathe and, as time advanced, loosen its judicial belt.
Another shocker is that are no requirements — none whatsoever — to become a justice of the United States Supreme Court. Six justices have been foreign-born (the well-known Felix Frankfurter among them) and the youngest justice — almost a toddler by judicial standards — was the 32-year-old Joseph Story who most place among the most rarified within the sparkling galaxy of Supreme Court stars. On the other end of age spectrum was Oliver Wendell Holmes, who served until the age of 90, making him the oldest. The ghost of Justice Holmes sees the current Ruth Bader Ginsberg fast approaching in the rearview.
Although every justice has been a lawyer, in the days when apprenticeships in law were common, not every justice attended law school. James Byrnes, who served a brief tenure on the court from 1941 to 1942, didn’t even graduate from high school.
While justices are appointed by the president — pending Senate confirmation — for life, borrowing from Shakespeare, “Restless lies the head that wears the crown” (or, perhaps in this case, that dons the judicial robes), as justices can be impeached. However, only one, Samuel Chase, ever has been (and he survived another seven years). Their tenure is not absolute.
On this nation’s birthday week, the heroes of our past are often invoked: Washington, Jefferson, Lincoln, and the like. But an oft-overlooked president — special in his own way — was our 27th commander in chief, William Howard Taft, who appointed five Supreme Court justices during his tenure as president and then retired from politics to become the only former president to become a justice — in his case the chief justice — of the court. Makes you feel like sort of a slacker, doesn’t it?
Perhaps the most misunderstood thing about the court is one’s recourse to it. I have lost count how many times in my career I have heard someone declaim upon their soapbox, “I’ll take it to the Supreme Court if I have to!” Or words to that effect. Well … sorta.
Such goals are largely aspirational. You see, the United States Supreme Court receives north of 10,000 annual requests to hear a case and accepts roughly half-a-dozen. By that metric alone, your odds are about 8 one-thousandths of being heard.
For the most part, the court only takes cases involving significant legal principles or cases in which lower courts have disagreed about the interpretation of federal laws. However, the court also has “original jurisdiction” (the right to hear a case for the first time, without prior any appellate review) but only in a few circumstances, such as cases involving disputes between two or more states.
Stated succinctly, the Supremes deal mostly with big picture stuff.
What else is often misunderstood is the belief that there are moments reminiscent of Cary Grant in “To Kill a Mockingbird” that play out before the court. Oh my, no. Those sorts of dramatics are for the trial courts and Hollywood.
Before the Supremes, things are substantially more genteel. Because the justices primarily hear cases on appeal, it’s uncommon for witnesses or evidence to be presented in court. Instead, attorneys submit written legal briefs in advance and justices typically listen to oral arguments. Each side has 30 minutes to present its case, during which the justices can — and, except for the famously taciturn Justice Thomas — do ask questions. Some time after the oral argument, the justices repair in private to discuss and vote on each case.
Despite the differences in their judicial philosophies, by most reports, it is a pretty collegial process and at times the justices make quite strange bedfellows. As but one example, before his death, the strict constitutionalist Antonin Scalia, and the liberal Ruth Bader Ginsberg, while they often crossed swords of judicial interpretation and application, were famous “besties” who reveled in each other’s company, bonding especially in their shared love of the opera.
The court is venerable. As the third branch of the federal government, it is meant to rein in congressional and executive excess and folly. It is designed as the pressure valve on the steam cooker of politics and policy. At the apex are the Supremes whose very essence is to keep steady the often pitching ship of state.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address, firstname.lastname@example.org. Mr. Robbins’ new novel, "How to Raise a Shark (an apocryphal tail tale)," is available at Amazon.com.
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