Challenging of Supreme Court

Report Outline
Controversy Over Nominees to Court
Place of the Court in Federal System
The Warren Court and the Congress
Special Focus

Controversy Over Nominees to Court

Fortas Rejection as Rebuff to Supreme Court

When the senate blocked the nomination of Abe Fortas as Chief Justice of the United States on Oct. 1, it applied a lesson of history that often tends to be forgotten: Under the checks-and-balances system of government, the Supreme Court does not function with complete independence. As interpreter of the Constitution, the Court often becomes the final reviewing authority of legislative and executive action. But it is dependent on the will of Congress in a number of ways. The Congress has power to limit the scope of the Court's jurisdiction, to increase or decrease the number of its members, and to determine their compensation. And no man appointed by the President may take his seat on the Court without the consent of the Senate.

The Fortas rejection seemed to some observers to portend a period of continuing strife between an “activist” Supreme Court and an increasingly conservative Congress. The confirmation process offers the Senate an opportunity not only to thwart the wishes of the President but also to attack the ideology of the nominee. Historically, the Senate has done so mostly when acting upon a nomination made by a weak or unpopular President. In the Fortas case, a third and perhaps decisive element was added. Since Fortas had already served three years as an associate justice, the legal philosophy of the Warren Court became a target.

“A vote of confidence is more inescapably explicit when an associate justice is nominated for the Chief Justiceship,” Alexander M. Bickel, a Yale law professor, wrote shortly before the Senate refused to halt the filibuster on the Fortas nomination. “It is too bad that in this election year, in the present mood of the country, the President deemed it opportune to nominate a junior associate justice, thus handing the Senate a chance to vote the Court up or down, so to speak.” Bickel suggested that this was one reason Chief Justices had been promoted from within the Court only twice before—Edward D. White in 1911 and Harlan F. Stone in 1941. They were “very senior in the service of the Court,” Bickel added, and “men of unassailable prestige.”