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We must never forget that it is a constitution we are expounding, Chief Justice John Marshall admonished his fellow justices in 1819. [1] To modern ears, Marshall′s words may seem at first a truism, yet through them rings with clarity the mission that gives the Supreme Court its importance in American life and government. The Court′s unique role is a direct outgrowth of the new meaning that the word constitution assumed in the American experiment. In 1789 every government had a constitution. The word simply referred to whatever principles and assumptions underlay that system. In the new nation called the United States, however, the word was invested with added significance.

A century later Justice Samuel Miller said, “A Constitution, in the American sense of the word, is a written instrument by which the fundamental powers of the government are established, limited, and defined, and by which these powers are distributed among several departments, for their more safe and useful exercise for the benefit of the body politic.” In the U.S. Constitution, Miller continued, “the people themselves have undertaken to frame an organic law governing the relations of the whole people, as well as of the individual states, to the federal government, and to prescribe in many cases the limits and rules of private and personal rights. It is the fundamental law pursuant to which the government is permanently organized and conducted.” [2]

In the United States, then, the Constitution is far more than a description of the existing system. It is an active instrument, the charter of the national system, the source of power and of the limits of power. The Constitution is hardly self-enforcing, however. Chief Justice Marshall described it as a document whose “great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the nature of the objects themselves.” [3]

Marshall′s observation raised several questions. Who would undertake these all-important deductions? Who would implement the limits that the Constitution set? Who would fill in the broad outlines of the powers it granted? The answer was not long in doubt: the Supreme Court would serve this function, it declared in Marbury v. Madison (1803). The “weakest branch” of the new system would assume this critical responsibility; the Court would be “the particular guardian of the terms of the written constitution.” [4]

In the ensuing two centuries, the Supreme Court—by virtue of its exercise of this responsibility—has become a powerful institution. It can override the will of the majority expressed in an act of Congress, a state law, or a city council ordinance; it can remind the president that he too is subject to the rule of law; it can require the redistribution of political power in every state; and it can rewrite the rules that prevail in police departments, prisons, or public schools.

The Court has made mistakes and contradicted itself along the way. Constitutional development in the United States follows no tidy pattern. The Court does not initiate cases or solicit issues; it must take them as they come. When it decides cases, it often seems tentative and hesitant, zigging and zagging from case to case within a particular issue. The pattern is quintessentially human. For all its remoteness, the Court is the most human of government institutions. It is made up of nine individuals, men and women whose names and faces and histories are in the public record. Issues come to the Court when people disagree. Black and white, merchant and consumer, prisoner and warden, president and pauper, all come before the Court seeking resolution of their legal disputes.

The justices who decide these cases are neither monks nor oracles. Some have been political or legal elites, but they respond to the same concerns and influences as their fellow citizens. They hear the arguments before them, and then they debate and vote. With a decision made, the justices write their opinions, comment on the drafts, and edit them. The opinions are (usually) signed. The decision is announced, and the dispute at hand is resolved, although sometimes only temporarily and, naturally, not to the satisfaction of all or even the majority. The role of the Court in the continuing development of the U.S. system is once again affirmed. The Court is the nation′s balance wheel. Justice Robert H. Jackson explained:

In a society in which rapid changes tend to upset all equilibrium, the Court, without exceeding its own limited powers, must strive to maintain the great system of balances upon which our free government is based. Whether these balances and checks are essential to liberty elsewhere in the world is beside the point; they are indispensable to the society we know. Chief of these balances are: first, between the Executive and Congress; second, between the central government and the States; third, between state and state; fourth, between authority, be it state or national, and the liberty of the citizen, or between the rule of the majority and the rights of the individual. [5]

This is the story of the Court and those balances.


Document Citation
1 David G. Savage, Origins of Judicial Power: Introduction, in Guide to the U.S. Supreme Court 3-4 (5th ed., 2011),
Document ID: gct5v1-1179-57455-2234240
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