The Highest Court in the Land: How Has the Supreme Court Evolved Through History?

It’s uncommon to look at the front page of any newspaper and not see an article about impending Supreme Court nominations and debates. But was this always the case? Were proceedings of the Supreme Court as publicized throughout American history as they are now? In this week’s episode of Fabric of History, Mary, Kirk, and Haley explore what the Constitution actually says about the Supreme Court and how history has interpreted and evolved its role ever since.

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 Intro/Outro (00:06)
From the Bill of Rights Institute, Fabric of History weaves together US history, founding principles, and what all of this means to us today. Join us as we pull back the curtains of the past to see what's inside.
 
Haley (00:20)
It's uncommon to look at the front page of any newspaper and not see an article about impending Supreme Court nominations and debates. But was this always the case? Were proceedings of the Supreme Court as publicized throughout American history as they are now? In this week's episode of Fabric of History, Mary, Kirk, and Haley, (that's me) explore what the Constitution actually says about the Supreme Court and how history has interpreted and evolved its role ever since.
 
Mary (00:52)
 Hey, Fabric of History listeners, this is Mary Patterson, and I am joined once again by my illustrious colleagues, Haley Watson and Kirk Higgins. Hey, Haley, Hey, Kirk.
 
Kirk (01:03)
Hey, Mary. How are you doing?
 
Mary (01:05)
I'm doing okay. I was just thinking about that one of the things that I really appreciate about working at the Bill of Rights Institute is that we're always steeped in history and civics, and I think of history and civics as two sides of the same coin. And I think one of the fun, fun for me as a history enthusiast and history teacher at heart, things about that is that you can start with the past and bring it into the present or vice versa. And I just think that's really cool. And today, since we have an upcoming vacancy coming on the Supreme Court, I think it's one of those times where we can do the latter and use the present situation about who's going to fill Justice Breyer's seat and go backward and think about, well, wait a minute, has there always been such a frenzy around filling a Supreme Court vacancy or what does the Constitution say about the Supreme Court? There's all these questions, these timeless questions that this incident brings up.
 
Kirk (02:06)
Yeah, I think it says a lot about us that this is fun, but it is to see the system of the Constitution working as it does. But also, I think the step back, like, we do a lot on this podcast and think about like, wow, isn't it kind of cool that this document in this process plays out in a way because some documents say it should, but I think as we'll get into today, it's not just those documents that say it should, but it's also tradition and history. And the way that we've done it for so long that's become the way that this process plays out.
 
Haley (02:38)
I think there's also an element of taking kind of our government, our justice system for granted and not really understanding how it started and how it evolved because that's really part of how it operates today. It's a result of all of the history of our nation and how it's formed and changed. So I think it will be really interesting and important for everyone to understand a little bit more about how it works.
 
Mary (03:00)
The Supreme Court is really top of mind because at the end of January, Justice Stephen Breyer announced that he's going to retire from the Supreme Court at the end of the current term. So he has been on the court for over 27 years, which is a sizable chunk of time. But now you have all these questions about who is going to take his seat, and there's kind of a frenzy in modern times that's accompanied has it always been this way, or is this just another example of sort of a media circus that we're living through in the present day?
 
Kirk (03:35)
I think that's a good question, Mary. Let's maybe look to the Constitution and history and see if we can find anything out.
 
Mary (03:41)
Yes. When in doubt, we go back to the Constitution. What does the Constitution actually say about the Supreme Court?
 
Haley (03:49)
Yeah. And does it tell us the process for nominating a new Supreme Court Justice? Kind of what are the details in the Constitution? What rules do they give us? Should we follow them or not? Should we create our own rule? Like, I'm a little lost already.
 
Kirk (04:05)
I think this is an opportunity for one of my favorite Constitution jokes because everybody loves a good Constitution joke, which is the Constitution. I read it for the articles.
 
Mary (04:16)
I love it.
 
Kirk (04:19)
And Article three happens to be the shortest. So maybe that's everyone's favorite because you don't have to read as much.
 
Mary (04:24)
I do have a soft spot for Article three because it is the shortest. And if you the articles one and two that deal with the powers of Congress and the President, it's rather detailed as they kind of spell everything out. But I think what's remarkable about the Constitution and the Supreme Court is that it actually says very little. There are three sections in Article three, and really the first two deal with the court, and they're really short, like Tweet short kind of. But they really wanted the framework, they wanted the first Congress to really set up the court system. And that's what the first Congress does with the Judiciary Act of 1789. So if you're looking for details about how many justices are there, how are we going to do this process of filling a vacant seat? That all comes later.
 
Kirk (05:15)
Yeah. And I think that was done deliberately. Right. As Hamilton talks about in Federalist 78, the Judiciary Branch is sort of a dependent branch. It can't act on its own. Its powers are kind of laid out in the Constitution. I mean, they are they're delineated what kinds of cases the court will hear. But as far as the structure goes and as far as who the individuals are, who will sit on that court, that's left up to the Congress to determine. And though it does say that they will serve on good behavior, so essentially guaranteeing lifetime terms. But it doesn't necessarily say, yeah, like you said, Mary, it doesn't say, okay, well, what's this court actually going to look like? And I think it's fascinating that even so, there's a position of chief justice that is outlined in the Constitution, but it's not outlined in Article three. It's actually in Article two when they're talking about the process of impeachment, that the idea of a chief justice is named. So it's really vague. Judicial review of course is the other one. There's nothing in the Constitution that says that the Supreme Court will conduct what we call judicial review or even that they have the final say on what is or is not constitutional, although that's kind of been carved out and defined both through legislative acts and over time.
 
(06:38)

 
Haley (06:38)
Yeah, I was definitely left wanting more of an explanation because it basically says in article two, section two, quote, the President shall nominate and by and with the advice and consent of the Senate, shall employ ambassadors, other public ministers and counsels judges of the Supreme Court. And that's really it. So it's saying that you will incorporate the advice and consent of the Senate. And that seems to have been an unchanged part of this process without a question. The President and the Senate are involved. But that's really it. That's all I got from it. So there seems a lot to be explained. Where can we go from here to learn more about how our young country dealt with this? A lot of vagueness, it seems. And how did they create that nomination process, the Supreme Court, so that it is what it is today?
 
Kirk (07:33)
Yeah. So to history we go, I guess. And I think Mary's question at the beginning is an interesting one, like, has this always been such a political question, or I guess by political, I mean contentious, sort of something that we're talking about over dinner table, something that's a hot topic. And Mary talked about the Judiciary Act of 1789, which, of course, set up the early court and how it was going to be established. It was at that point that I think the first part of that question comes to mind. So if we have nominations, that means we have to have vacancies, which means there has to be a set number of people who serve on this court. And it was in the Judiciary Act of 1789 that they outlined that there would be six justices, as opposed to the current nine that sat on the court, which any astute observer will say, wow, six justices. That kind of sets up a problem, doesn't it, if they are split and they don't necessarily if there are three of them that like something and three of them that don't.
 
Haley (08:33)
They don't have a tiebreaker.
 
Kirk (08:35)
Yeah, exactly. Apparently, that wasn't a concern at the time.
 
Haley (08:38)
Based on my own research. It's kind of a mixed bag because I've read some sources that say the Senate generally deferred to the president's choices to sit on, who to sit in the Supreme Court. And they didn't have anything like hearings at the beginning of our history. They typically confirmed appointments within days of the president's nomination. And using voice votes, you can imagine just a lot of voices, probably Yay or nay, echoing through the Chambers. But then it is also true that over the course of the 19th century, the Senate rejected nearly a third of all Supreme Court nominees, which is a lot. So it's by no means that in our early history, the President nominated someone, and then everyone was like, this is a great idea. I'm going to support this. So there definitely was contention. There always was contention. I think that's a misconception of modern times. I think it wasn't as maybe publicized in the media, but there definitely seems to have been contention and discussion around nominations all through our history.
 
Kirk (09:43)
Yeah. So Interestingly, one of those first rejections was John Rutledge. And so I'm going to try to sprinkle my fund Supreme Court facts throughout this podcast. So we'll see how many I can get in. But John Rutledge holds both the first and second place for shortest terms on the Supreme Court. So that's kind of an accomplishment in and of itself. So he was nominated by George Washington on the inaugural Supreme Court, served for a year and 17 days between February of 1790 and March of 1791, and then resigned to serve on a court in South Carolina, but then left that court when George Washington nominated him again to serve on the court. But he was nominated when the Senate wasn't in session. So it was called a recess appointment. And when the Senate came back, they were like, no, that's okay. We don't want you back, John, partly because of a stance that he had taken on a foreign policy issue. And so he only lasted 138 days that time. And so now he is the shortest-serving member ever on the Supreme Court as he resigned or he didn't have his position confirmed. So he wasn't able to serve officially in that capacity.
 
Kirk (10:58)
That shows, I think, that there was some contention there. Right. That there was a political choice that was made to not allow Rutledge to serve. So even from the beginning, you have I don't know if I would call it contentious, but you certainly have political debates over who ought to or ought not to serve on the court.
 
Mary (11:16)
If we're talking about sort of a turning point in the media attention in Supreme Court nominees, then we go into the later 20th century because that televisions are starting to become normal in American homes in the 60s, and then you're starting to see approval or nominations and hearings and stuff on TV. So that's obviously going to reach more people. But I wonder if it's the fact that we just have that technology that makes it more contentious because more people are paying attention because they can, or if it was just as contentious then when people didn't have access to it.
 
Haley (11:49)
I mean, I guess to an extent you have to be there to really know the heat of the moment. And these hearings were not public until the 20th century. So members of public could not watch obviously this on TV, but also go and sit and hear these debates. So you had to be on a certain level to actually have access to them, which I think is interesting. Even if you had saw a newspaper, you didn't feel as involved. But I did read a lot about President John Tyler's attempts to nominate a justice surrounding his falling out with a Whig Party in 1844. And this led to the Senate wig majority rejecting or refusing to act on four of his five nominations. And then finally in 1845, they did accept his nomination of Samuel Nelson, a top New York judge who was well respected. But I definitely read about John Tyler's kind of brutish personality and anger in getting these rejections. So it does seem like it was contentious at the time as well.
 
Kirk (12:57)
The accessibility we now have to these debates certainly makes them more present, and maybe that has an effect of making them more political, but it's certainly, I think, been a political process from the beginning. So I mentioned earlier talking about, well, why are there nine justices and not 50 or five or six like there was originally? And I think that story, too is a political one. So there was six at the beginning. And then the election of 1800, the Federalists right before they were about to get voted out, they decided, hey, it was actually after they got voted out during the lame-duck session of Congress in 18 one, they said, well, we don't necessarily want Thomas Jefferson to get a nomination, so we're just going to go ahead and lower this six number to five. And so then maybe he won't have the opportunity to nominate somebody. And so they passed the judiciary act of 1801. When the new Congress was set in March of that year, they quickly repealed that law. But it just shows that they're already playing with the numbers. It happened again after the Civil War. So Abraham Lincoln had increased the number to ten justices.
 
Kirk (14:06)
And the Republicans in Congress at that point known as the Radical Republicans were frustrated with President Andrew Johnson. So to decide, hey, ten is too many, let's reduce it to seven so that Johnson doesn't have an opportunity to kind of put his folks in here. So they did that. But then after the Civil War, it went up to nine again under the presidency of Ulysses S. Grant. But then again, we of course have the famous case of court-packing, right. This phrase that was even thrown around at the beginning of Joe Biden's presidency, but really goes back to FDR in trying through legislation to increase the number of seats on the court and the way he did. That was actually interesting. He essentially said, look, if you're justice over 70 years old, you need to retire now. And if you don't retire, I'm just going to add another seat to the court. So there were six justices that were over 70 at that time. The idea was that they would add six new seats, moving the number up to 15. But that piece of legislation did not pass, so it stayed at nine and it has stayed at nine ever since.
 
Kirk (15:08)
But again, I think the point of going through all that is to show the court a is sort of a dependent branch. It doesn't get to define anything for itself. So Alexander Hamilton's point again, in Federalist 78, it's subservient, in a manner of speaking, to these other branches, but it is coequal in its authority and has asserted that authority, particularly through judicial review, in determining whether or not legislation is constitutional. But at its heart, it's dependent on this political framework that exists around it.
 
Haley (15:39)
Yeah. Just hearing that, it really surprises me how flexible the court and really the rules of how it operates change. You always think that the government is unchanging. The Constitution says something and we all follow it, and that's it. But these presidents making new rules, excuses, whatever call them whatever you want to increase or decrease the number of justices for their own benefit. The Senate as well also shows that this is an evolving process, and it really just depends on the people involved in it right now to carry on some parts of the past, create new things. It's really just an evolving part of our system.
 
Mary (16:21)
I think that's the beauty of it. Right. It's an experiment, and the experiment is ongoing, so the bones are there. As you said, Kirk, it's really interesting how the court is dependent on, to a large extent, Congress. I mean, Congress has to say yes or no to making it bigger or smaller and approving the nominations from the executive. We have a vacancy coming up. Breyer will be leaving. Who's going to fill his seat? Right. Who is that person going to be? What's their background? That's another really interesting piece to me is that there aren't any specific qualifications listed in the Constitution for a justice, and that, I think, is what so many people in the present day latch onto is. Well, who is this person? What have they done before? I mean, it doesn't even say it doesn't specify they have to be trained in law. They usually are. But I think that's really interesting because you have these specific qualifications if you want to be President if you want to serve in Congress, but that's not there for a justice. But that, I think, is what excites people so much is knowing who this person that's going to sit on this court, that even if it is a dependent branch, they still have a lot of authority.
 
Mary (17:35)
So who are they what's their background and how might that affect how they rule on a case?
 
Haley (17:42)
Yeah. It's also a question of is the Senate really objective, or do they have personal interests? Are they aligning with the president's party? If they are not his party? Are they trying to sabotage him? How can we ensure that they are really objective if we don't have any guidelines?
 
Kirk (18:03)
Yeah, I think that's a really important point, too, because that, to me, at least, is at the heart of what people are concerned about when they're talking about. Oh, well, this is becoming too partisan. And I know that John Roberts, he's been chief justice, has been very intentional about making sure that the court remains a trusted institution. Right. There's a conscious effort, I think, to put the court in a position where it is seen as being something that can be trusted by the American people making these rulings. And, of course, and Mary, I can't believe we have an opportunity to talk about an image and we haven't yet. Lady justice. Right. We always see this picture of Lady Justice and she's blindfolded. This is the idea that justice ought to be blind in a sense, not that it can't see, but that it's trying to rule as neutrally as possible. Right. It's trying to interpret the law as it exists, the law being the thing that we have consented to through our elected representatives. So the people's voice is represented in that process. Then the law comes in and the judge comes in to determine whether or not something is or is not compatible with whatever the piece of legislation was.
 
Kirk (19:10)
And so I think a lot of the concerns that we have that get voiced are about that. If this is too partisan if this person is going to lean too far one way or the other, what's that going to mean? But I think talking about these individuals. So maybe you might be able to name the nine current sitting Justice Supreme Court. But can you name how many of the 115 or however many justices we've had throughout history can you name but knowing about them, I think is fascinating. So I have a couple here, but I'll start with one former President Taft, also a Supreme Court Justice, not only a Supreme Court Justice but a chief justice on the Supreme Court. So he was President from 1909 to 1913 and then chief justice from 1921 to 1930. And he served with two of the gentleman that he had nominated beforehand, at least at the beginning of his tenure on the court. And I just find that fascinating. He was nominated and approved on the same day, too. So, Haley, to your point, how long does this take? He was nominated by Warren G. Harding. One of those big-name presidents everyone always remembers and was approved that day, became a sitting justice.
 
Kirk (20:21)
So I think he is the only President who has also served as chief justice. But to me, that's fascinating. There's a truly political I mean, he was President and then chief justice. So talking about separating or concerns about politics or partisanship, that's kind of amazing to me.
 
Mary (20:38)
I think when people are thinking about the contentiousness of the Supreme Court, they're thinking about the hearing, and they're thinking about there's protesters at the hearing, as there were for some of Trump's nominees. But once people are on the court, I think the court values consensus and agreement. They want to ensure that the law is being applied so they're not supposed to be offering their opinion, their personal opinion on the law as written. And I think to me, what's interesting about that is that the justices are all they're all friends and colleagues, and they talk about each other like that. I think the famous example is Ruth Bader Ginsburg and Scalia, who were sort of from different sides of the political spectrum, but were great friends. And I think even if you have a different background or a different personal opinion than someone else on the court, you're still there to do the same job. I think it's beautiful in a way, like a beautiful metaphor for just sort of America writ large. Right. There are lots of different people with lots of different interests. And the whole idea is that we usually tend to value like agreement and consensus, and that's what the court aims to do, and they don't always get there.
 
Mary (21:56)
And you have these five four splits, but the five four splits are a minority of their docket. But that's what gets all the attention.
 
Kirk (22:05)
I think that's fascinating, Mary, because it points to also the value that we place in this nation on the rule of law, and that the law is the thing that is held in reverence and that it means something, and that interpreting it is a serious task to be taken seriously. And the closeness of the relationship between the Supreme Court members of the Supreme Court, I think it points to a couple of things. One, I think it points to sort of the idealized version that we want to have in a democracy. Right. People sitting down and thinking seriously about what these laws mean and debating amongst themselves about how best to interpret them. But it also points to the importance with which we hold the process by which those laws are upheld. Right. The respect for that. And again, talking about the need to make sure that the court is a respected institution, goes to the idea that there needs to be serious debate and conversation about these things. And it's pretty incredible that we have a Supreme Court that we look to that does that so well and has done it for a long time. And sort of that tradition overtime of the court existing in that respect to tradition, I think has built it to be that thing that we look to when in times of challenger question of the law and everything else.
 
Kirk (23:23)
And that's something I think sometimes we might take for granted, but we certainly shouldn't. I mean, that's pretty awesome.
 
Mary (23:29)
Yeah. And I think people will think, well, it's not their job to pick sides. They're interpreting the law. And if you have ever read a Supreme Court opinion or a dissent, I mean, these people and of course they have clerks and staff helping them write these documents. But these are like weighty heavy things. You need to really sit and concentrate and annotate and highlight it to understand what they're saying. So it's not this kneejerk reaction to something. It's very serious. It's very considered. It's very thoughtful. They're referring back to all different precedents and other laws. So it's something that's taken very seriously. And I almost feel like by making it into this partisan fight and for this media frenzy about it, we forget that.
 
Haley (24:18)
And I will say the fact that it is nine people who are collaborating and discussing instead of one, I think speaks to that civil discourse idea of the founding, that it does encourage collaboration and their group coming together to solve a problem really at the end of the day. And also, yes, it's interesting that the justices are not nominated by the public directly. Obviously, we elect our President and our senators, but at the end of the day, it's those two branches that are making the decision about who will decide these big cases. So we do have to put kind of our trust in the system and this idea of collaboration to make it all possible because without trust, nothing matters. It's about the structure of the government and how it's set up, but also how we view it.
 
Mary (25:08)
One final point on this idea, I think that's important to make is that the court is not the court. It reverses on itself. Right. We've seen that. Of course, the example that everybody knows is Plessy versus Ferguson and Brown v. Board. So even in saying the court has this really important job and they issue important decisions, sometimes they can we say they get it wrong or the precedent shifts or something like that. And I think that's also an important thing to keep in mind.
 
Kirk (25:36)
Yeah, Mary. I mean, I think to that point, sometimes the court reverses itself really quickly, as it did in the Barnett case, which reversed the Go by this case on the same issue of whether or not you could be compelled to sort of in act of patriotism in the classroom, and it reverses itself within three years. Right. And I think what's important about that is to show that these are serious legal debates that are taking place, but that they are just that their debates. And though it's not as Democratic a process in the sense that we don't directly vote for these justices, it's still important that both their rulings are detailed. So we get to read through the decisions that are handed down and that those things can be questioned and challenged. And just because the court rules on something, it doesn't mean that that's it forever and for always. So, like you mentioned in Plessy versus Ferguson, there's been other notorious cases like the Dred Scott case. Right. But over time, the court is able to investigate and challenge and look at those decisions and make a determination as to whether or not that was valid.
 
Kirk (26:48)
And again, that comes from the fact that these are just people. I mentioned William Howard Taft earlier, the former President, but there's been lots of others. We talked about John Rutledge, too, some of these guys from the past, John Marshall, I think, is somebody that everybody knows. But Joseph Story, another member of the Marshall Court, is a very astute constitutional scholar and successful author put a plug. But these individuals have thought about and written about and talked about these different cases, and you can go back and see their jurisprudence and see who they were and see how they came to these decisions. But I think seeing them as human beings is an important part of that understanding, that they are coming in with their own jurisprudential views on things, their own sort of judicial philosophy, in other words, and their backgrounds can weigh in. But they have these different perspectives that they bring to the court and the way that they address these different cases. And I think seeing the court as a collection of people is an important part of that.
 
(27:46)

 
Haley (27:47)
Yeah, and also public opinion changes. An example would be the nomination of Louis Brandeis. President Wilson nominated him, and it was kind of a big deal because he was considered a progressive. He was also Jewish, but a lot of the senators blatantly opposed him, including William Howard Taft, one of the Republicans who opposed him. But Taft called his nomination an evil and a disgrace. And six former presidents of the American Bar Association also opposed Brandeis. But in response to this outcry, the Senate heard the first-ever judiciary hearing on a Supreme Court nomination. This was a big deal at the time. But even after all of this uproar, when Brandeis retired in 1939, the New York Times said that the retirement of Justice Brandeis takes from the bench the Supreme Court, one of the great judges of our time. So completely changing their mind about Justice Brandeis. So this really shows that nothing is forever. Public opinion changes as politics change as time goes by and as justices prove themselves one way or another. 
 
Mary (29:05)
The court is I don't know.
 
Mary (29:07)
Here we go.
 
Mary (29:08)
We fast forward to 2022, and we know that Steven Breyer is going to retire, and he has long been associated as a Liberal voice on the court. And so we're back in it. Who will be the nominee and how will the committee the Senate committee respond? How will the public respond? What are they going to ask this person, I think, knowing sort of the rich and storied past of the court and how there's always been disagreement and also agreement, and it's just it kind of puts it in perspective that maybe it's not so strange at the time that we're living in right now. Maybe we're just still in this experiment and the experiment is still going on. And in fact, that's what Stephen Breyer says when he announced his retirement at the White House. He says the US is an experiment that's still going on. And he says, and I'm quoting directly now, "you know who will see whether this experiment works? It's us, but it's you. It's the next generation and the one after that, my grandchildren and their children, they'll determine whether the experiment still works. And of course, I'm an optimist and I'm pretty sure it will" end quote.
 
Mary (30:24)
I don't know how you can really top that. I think so, Stephen Breyer, in another podcast, we talked about recent supreme court ruling Where Stephen Breyer referred to schools as the nurseries of democracy. So you can kind of see his optimism there, too, that by knowing the Constitution as this code that we can apply to past and present Helps us think about these issues. I mean, they're important and they're serious and we should spend time reflecting on them and engaging in the conversation, but that doesn't mean that people in the past didn't confront these same questions. The experiment is ongoing. It's not done yet. So thank you, Haley and Kirk, for talking the Supreme Court with me. Thank you, listeners. If you have any comments, any questions about the Supreme Court, please let us know. You can reach us at comments@fabricofhistory.org. You can find us on all the social media channels. If you like this episode, please give us a review that helps us reach more people. Talk to more history enthusiasts. Consider more questions. That's what we love doing here. So until we see you again next time, everybody keep asking questions.
 
Intro/Outro (31:42)
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