Most developed countries have a Supreme Court, which means what it says.* It is the maximum legal authority a third branch of the government, independent however of the legislative (Congress or Parliament) and the Executive (The President or Head of State); yet it is only a small body of highly qualified judges, appointed in the case of the United States by the President, with the agreement of the Senate or Upper House. There were only nine members when the Court was established in 1869, and they held and hold their place in the Supreme Court for life.
In America the court rapidly claimed the right to decide if laws passed by Congress or state legislatures were constitutional. It could only do so when cases arising from a particular law were brought before it. The following rather laboured phrase was famously used: ‘We are under the Constitution but the Constitution is what the judges say it is, and the judiciary is the safeguard of our liberties and our property’.
Since the late nineteenth century the Supreme Court’s decisions have been important in deciding whether power lies with the states or with the federal government. Thus the social and economic development of the US has been affected, sometimes guided. But, and it is a big But, the Court has no means of enforcing its judgements, which means it must rely on the President. Some presidents have not cared too much about the Court’s decisions.
Some Chief Justices have said very odd things during sessions of the Supreme Court. C.J Marshall said many state laws were unconstitutional and in one case an Act of Congress was declared so! Later C.J. Taney said that ‘blacks are beings of an inferior order’ (it was the nineteenth century) and added that Congress had no right to ban slavery in any state, a speech that helped start the American Civil War.
In 1896 the 14th Amendment to the Constitution gave black people ‘the equal protection of the laws’, but the Supreme Court was not in any way enamoured of ‘black rights’, and maintained racial segregation by upholding the ‘Jim Crow Laws’.
From 1890 to 1930 the Court limited federal attempts to control trusts, to establish worker’s rights to form a union, or to limit the number of children working in an adult’s job. In the first administration of Franklin D. Roosevelt (1933-7) the Court declared 12 New Deal laws unconstitutional. This displeased Roosevelt who asked Congress for a Bill allowing him to appoint more liberal judges in the Supreme Court. He did not get far with this radical proposal, and in fact had to withdraw it, as opposition was too strong. FDR was seen as trying to threaten the judiciary’s independence – which of course he was – but this independence was guaranteed by the Constitution, though the threat had alarmed the judges. They upheld laws which they might possibly have opposed, such as the Social Security Act providing old age pensions for the elderly, unemployment insurance, and a helping hand for the trade unions.
*Spain has a Supreme Court which is apparently not as ‘supreme’ as some would like. There is also a Constitutional Court which recently upset a decision pronounced by the ‘Supreme’ Court.