The Supreme Court is a Refuge of Justice and a Guardian of the Constitution

The Supreme Court seems to be the least understood but most feared member of the triumvirate which governs this country and provides the check and balance to power that our Founding Fathers envisioned.  The Court can’t investigate anything.  It can’t eliminate any part of the Constitution.  It can’t create a law.  It cannot adjudicate any law that is not brought before it by a lower court.  In fact, the only way the Supreme Court can pass judgement on any law is to have a citizen (you, me, the attorney General of a state, a corporation…) appeal an adjudication from a lower court claiming that a violation of the Constitution has occurred.  And here is the nut of the matter.  The Supremes don’t judge whether a verdict is correct, they judge whether or not it is Constitutional.  In doing so, they have breathed life into the Constitution, allowing it to grow with the nation.  This is how we went from Plessy v. Ferguson in 1896 which established the concept of separate but equal racial segregation to its elimination in 1954 in Brown v. Board of Education.  Times change, needs change, the Constitution grows but stays the same.  “We the People…” continue to be served. 

Since the Supreme Court was established in 1789 there have been 161 nominations to the court.  Of these, 121 were confirmed.  [Seven people declined to serve after being confirmed.]  But that still means that the rejection rate is not quite 25%.  One in every four nominees have failed the one hurdle they must clear—confirmation by the Senate.  The President may propose anyone he/she wants as a Justice of the Supreme Court but that carries no more weight than the President sending a budget to Congress or a State of the Union message of hoped for legislation.  In other words, it doesn’t amount to a hill of beans; there is no legal compulsion for Congress to acquiesce or confirm. 

The Senate has to approve every person for the Supreme Court.  They have either rejected, postponed or pressured the nominee to withdraw a quarter of the time.  Some Presidents have had much more luck than others with the Senate, presumably that speaks to the good sense of the President, the work ethic of the Senate or the dumb luck of the timing. 

As you might imagine, Washington, Lincoln, Jackson and FDR had huge success rates.  Pity poor John Tyler (his own party disliked him so much that they wouldn’t even nominate him for a second term) who sent 9 names to the Senate and only got one confirmed.  Millard Fillmore and Grover Cleveland (in his first term) suffered the same fate, though not in Tyler’s extreme. 

Of the 161 justices who have served 69 have been nominated by Republicans and 33 by Democrats.  In large part, this reflects the preponderance of Republican Presidents after the Civil War.  Thirty-three Justices were confirmed prior to the development of the modern versions of the two party systems and were nominated by a conglomeration of Whigs, Federalists and Democratic-Republicans.   [A Democratic-Republican, by the way, conjures up the vision of a creature which must look a great deal like that mythological beast, the twi-night double header.]

The point here is that the Founding Fathers were smarter than present day politicians.  The Constitution is a miracle of a document.  Study it.  Respect it.  Obey the law.  Keep the faith.