Why They Reign Supreme

The Supreme Court,” Frederick Douglass told a civil rights meeting in 1883, “is the autocratic point in our national government. No monarch in Europe has a power more absolute over the laws, lives and liberties of his people, than that Court has over our laws, lives, and liberties.” 

Stuart Banner, a legal historian at UCLA, quotes these words in his magisterial new book, The Most Powerful Court in the World, to illustrate one part of the public reaction to the Court’s disastrous decisions in the so-called Civil Rights Cases, which eviscerated the Civil Rights Act of 1875 and locked in the legality of Jim Crow for three generations. But he also includes them in part, I suspect, because they echo his central thesis—that since the dawn of the Republic the high court has been a font of unprecedented power, and that this was a feature, not a bug, in the original design. The idea is the subject of some controversy, since the text of the Constitution does not explicitly grant the “one Supreme Court” the power of reviewing state and federal laws for conformity with the Constitution. Some historians regard John Marshall as having grabbed for power in Marbury v. Madison, taking to the Court a power it did not clearly possess. The Framers, however, discussed the then-nascent practice of judicial review (which was being created in the state courts at that time), and it seems likely that they anticipated it as a feature of the new federal court. Banner reads the evidence as clear. At the Founding, he writes,

the justices were merely a small group of unelected lawyers, yet they were strong enough to set aside state and federal statutes, the ultimate outputs of the democratic process, by holding them unconstitutional. They could issue orders to states and to the other branches of the federal government. No country had ever given its judges so much authority.

Over the 30 years I have been teaching constitutional law, students and ordinary laypeople have asked me for a useful, accurate, dispassionate one-volume history of the Court and its encounter with the Constitution, and I have felt constrained to answer that such a book doesn’t exist. 

Now it does. 

This book will be a boon to anyone who wants to begin a serious study of constitutional law and its chief oracle, the Supreme Court. Though events are changing the Court rapidly as I write, the book is as of 2024 complete, readable, and authoritative. That I feel called upon to poke at the thesis a bit in what follows is a sign not of its deficiencies but of its success. A good work of history is like a rousing parlor game—readers may begin the evening in the corner feigning indifference, but by evening’s end they will be shouting out clues and guesses as part of a happy clamor. There is so much here that everybody will find something to disagree with—and much to appreciate and value. 

“The Supreme Court is the autocratic point in our national government,” Frederick Douglass said in 1883. These words echo Banner’s central thesis—that since the dawn of the Republic the high court has been a font of unprecedented power, and that this was a feature, not a bug, in the original design.

Banner has taken on the role of writing a history of the Court as an institution—how history and legal changes have slowly transformed its role from one that, though important, was also mostly peripheral to the main action into one that today clearly believes the hype its acolytes have showered on it in the years since Richard Nixon began the Court’s long march to the right. Former Solicitor General Kenneth Starr, an energetic legal conservative, in 2002 proclaimed the Court the “first among equals” in the federal government. The Court, he said, actually set national policy, and the executive and legislative branches carried out its commands. Even in the wake of Bush v. Gore, it seemed an extravagant claim at the time; but no longer. The Court has the bit in its teeth, and here is a qualification to Banner’s argument that the Court’s power was there at the Founding: The extent and pervasiveness of its legal and cultural impact seem well beyond anything that might have been foreseen at the time. Though the Court has always had the power of judicial review, over time a difference in degree—and its willingness to use that power for often-dubious ends—has become a difference in kind. Today’s Court would be unrecognizable 200 years—or, for that matter, 75 years—ago. 

Banner’s early chapters give an excellent summary of the structural indignities that restrained the Court in its early years. Not only did the justices not have their own courtroom (that would not come until 1935), but they also were saddled by Congress with the onerous task of “riding circuit”—traveling, at great trouble and expense, the primitive roadways of the new nation in order to preside, along with humbler district judges, over actual trials, which they would then review on appeal once they had staggered back to Washington, D.C. This was exhausting work for lawyers of middle age. John Jay (who resigned from the Court in 1795 to run for governor of New York) complained that circuit riding “takes me from my Family half the Year, and obliges me to pass too considerable a part of my Time, on the road, in Lodging Houses, & Inns.” Even when their “rides” were completed, they did not go home. Instead, they bunked in together, Alpha House style, in a boardinghouse. “We live very harmoniously and familiarly,” Justice Joseph Story told a friend in 1812. “We moot questions as they are argued, with freedom, and derive no inconsiderable advantage from the pleasant and animated interchange.” And while this does sound rather jolly, I imagine that some early members of the Court would have preferred to be at home with their families. (Not until 1869 would the justices begin to buy homes in the capital.) 

Oral argument must have been a burden as well. True, it featured the orations of figures like Daniel Webster, but the incessant roar of even a lion can grow tedious over days and hours—and in those days, a case’s oral argument went on from day to day until the adversaries had simply run out of things to say. Balancing that burden, however, was freedom from the constant reading that is the center of action in today’s court: There were no written briefs to read. 

But most problematic of all (and most relevant to Banner’s thesis) was the fact that the Court had to take all cases that walked in the door. While law students marvel at the wisdom of Marshall and Story in “great cases,” most of the work of the Court was, and remained for decades, appeals from ordinary real estate, commercial, and criminal case—a flood so incessant that there was little time to confer and draft opinions, most of which tended to be short and so unenlightening that they were not even published.

I hasten to add that readers curious about the “great cases” will find God’s plenty here. Banner knows why readers want to know the Court’s history. The summaries of these cases—from McCulloch v. Maryland to Dred Scott v. Sandford to Plessy v. Ferguson and on to Brown v. Board—are clear and correct. Banner seldom editorializes, even about the Court’s worst decisions; his goal is to situate each one in the institutional history of the Court. Thus it is of importance that circuit riding, despite desperate pleas from the justices, was not abolished until 1891.

Here’s where Banner’s essential thesis—that the Court today functions as it was designed to by the Framers—can be subjected to some examination. Let us stipulate that the Founding generation understood the Court to have the power of judicial review not simply of state statutes but of acts of Congress as well. The small court hidden in the Capitol basement grinding through hundreds of humdrum appeals, for all that it might formally have that power, would likely be able to exercise it only seldom. 

Indeed, after Marbury v. Madison invalidated one small portion of the federal Judiciary Act of 1789, it was not until 1857 that it struck down a federal statute again. This was the disgraceful case of Dred Scott v. Sandford, in which Chief Justice Roger B. Taney wrote an opinion explaining that Americans of African descent were not and could never be citizens, and that Congress, which had abolished slavery in the Northwest Ordinance of 1787, had never had the power to do that, and thus that the Slave Power could extend itself wherever the American flag flew. Banner traces the maneuverings around the opinion (two justices had alerted President James Buchanan of the impending decision, which he and they wrongly thought would put an end to the slavery question altogether). 

After Dred Scott, however, judicial review gradually picked up steam, until by the 1880s the Court was ready to bar any measures to protect Black Americans from discrimination while at the same time tenderly protecting nascent giant corporations from bothersome legal interference. The Civil Rights Cases were followed by United States v. Reese (Congress could not punish whites who barred Black voters from registering) and United States v. Cruikshank (courts could not punish whites who engaged in an all-out massacre of Black people in order to take over an elected local government); Giles v. Harris (the Fifteenth Amendment did not allow courts to strike down grandfather clauses and “citizenship” tests that eliminated Black voters from Alabama voting rolls); and the “segregation trio”—Plessy v. Ferguson (segregation by law on public transport fully constitutional), Cumming v. Richmond County Board of Education (county government could levy a special tax and use the proceeds to build a whites-only school, providing no school at all for Blacks), and Berea College v. Kentucky (segregated states could require even private schools to expel all Black students).

The roots of the Court’s perfidy are complex and controversial, coming as it did in the midst of the overthrow of Reconstruction and the rise of the American empire. White supremacy was undoubtedly much in vogue at that time, and was gaining in strength as the United States became an imperial power ruling people of color in the Caribbean and the Pacific. Banner writes that “the justices were men of their times.” 

The question seems to me more complicated: The justices might have been “men of their times,” but the Court, from the Civil Rights Cases on, did not so much follow public opinion as take an enthusiastic leading role in the gutting of the Civil War amendments. The justices published in their opinions some of the cruelest anti-Black rhetoric admitted into public discourse even back in that vulgar era. 

I also had questions about Banner’s analysis of the fiercely anti-government and anti-labor period we call today “the Lochner court” (after a case holding that New York could not set health regulations of bakers’ hours of work). Barron explains that the Lochner-era justices

subscribed to a nineteenth-century conception of government as empowered to advance the public good but not the private good of any individual or group. On this understanding, a law that took money or power from one group and handed it to another, for the purpose of benefiting the second group at the expense of the first, was out of bounds.

This explanation seems partial at best, for the same justices saw no problem in “redistribution” when it took the form of redirecting wealth upward; the era’s labor cases are, to say the least, extreme and to me inexplicable purely as a matter of anti-distribution economic theory. For that matter, redistribution doesn’t explain Hammer v. Dagenhart, a 1918 case that, by blocking a federal prohibition on child labor, doomed a generation of southern children to service in the mines and mills, until the New Deal Court finally overruled it in 1941. The national consensus at the time was strongly against child labor, and a powerful national movement had inspired the statute at issue. The Court set its face resolutely against its own time in that struggle. 

The extent and pervasiveness
of the Court’s legal and cultural impact seem well beyond anything that might have been foreseen at the American Founding. Over time a difference in degree has become a difference in kind. Today’s Court would be unrecognizable 200 years—or, for that matter, 75 years—ago. 

I must confess, too, that I wished for more colorful details about the assorted scoundrels who, elevated to justiceship, did their best to lower the court: Samuel (“Old Bacon Face”) Chase, a gouty wretch whose anti-Jefferson speeches from the bench led to the only successful impeachment of a justice in history (he was not removed); Salmon P. Chase, who was made chief justice largely to stop him from scheming to replace Lincoln as president and who spent the rest of his tenure angling for a presidential nomination—of either party—and sacrificing both his jurisprudence and his own family to that quest; Stephen J. Field, who wore a robe custom tailored to allow him to carry not one but two guns, and who to this day remains the only justice ever arrested for murder (he was quickly released); James C. McReynolds, a curmudgeon so unpleasant that legend attributes his appointment to the Court to Woodrow Wilson’s desire never to speak to him again; and William O. Douglas, another perennial presidential aspirant whose jurisprudence sometimes seemed calculated for electoral advantage and whose extracurricular romances made him “the first sitting justice to be divorced, and the second, and the third.” 

They are all present, to be sure, and if they get less than their due, clearly some ruthlessness was needed to contain a story this large. Banner includes plenty of interesting behind-the-scenes Court minutiae. The details of the period during and after Franklin D. Roosevelt’s makeover of the Court are great fun—this is the time when the Court earned the nickname “nine scorpions in a bottle,” and their feuds on at least one occasion became the subject of a congressional investigation. Banner paints a moving portrait of Justice Frank Murphy, who served from 1940 until his death in 1949 and was known by most insiders to be half of a lifelong stable “marriage” to a male fellow lawyer. (Barrow reports that when one socialite called Drew Pearson and told him she had celebrated so hard that she had to spend the night in Murphy’s apartment, the columnist replied, “Well, there’s no place you could be safer.”) 

Later, the rise and fall of Abe Fortas, a crony of Lyndon Johnson’s who was driven from the Court by pressure from the Nixon administration after it was learned that he had accepted funds from a millionaire, and the attempted impeachment of William O. Douglas, which so infuriated Douglas that he canceled his retirement plans and remained on the Court until driven into retirement by a stroke, are also fascinating gossip. 

But I must stop here, though I’d like to prattle on into the evening about the things I liked (or, more rarely, disliked) about The Most Powerful Court in the World. Come for the discussion of the Court’s power of judicial review, if you will, but stay for the sweeping narrative of American history. At the end, you might conclude, like me, that the present Court, with total control over its own docket and an aggressive theory of judicial review, is quite different from the powerful Court created by Article III. But no matter your theory of judicial review, if you want to deepen your understanding of the Supreme Court and its role in American history, buy this book.

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