An Interview with Professor Donald Elder: The Supreme Court and its Decisions: A Historical Overview

Jul 2, 2012 by

Michael F. Shaughnessy –

  1. Professor Elder, the Supreme Court has been part of our system of government since 1776- but has not always been as influential as Acts of Congress, or Presidential Executive Orders. Am I off on this, or is it simply a matter of opinion in this regard?

Actually, the Supreme Court was not specifically a part of our government until it was created by an act of Congress in 1789. It didn’t hand down its first decision until 1791. Until John Marshall became the chief justice in 1801, the Supreme Court was only lightly regarded by the American people.

  1. Could you summarize the very first batch of fine Americans of jurisprudence that served on the Supreme Court, and any decisions that they made which impacted the beginning of our nation?

During the first 12 years of its existence, the Supreme Court had three chief justices: John Jay, John Rutledge, and Oliver Ellsworth. These men had all been part of the convention that create the Constitution, and had served the nation in other capacities before joining the Supreme Court. But they had little impact as chief justices, handing down very few rulings.

Ironically, the biggest case between 1789 and 1801 was Chisholm v. Georgia, which involved a South Carolinian trying to sue the state of Georgia. The court ruled against Georgia, but Congress promptly created an eleventh amendment to the Constitution which granted states immunity from suits brought by citizens of other states.

  1. It has been a while since I have studied Marbury vs Madison in depth, but as I recall, this was one of the first MAJOR Supreme Court decisions- or am I off by a few years?

Marbury v. Madison is regarded as being the moment that the Supreme Court gained a stature equal to the Executive and Legislative branches of the Federal government. In its 1803 ruling, the Supreme Court claimed the right to judge the constitutionality of a law or presidential action.

Credit for this turn-around goes primarily to the Chief Justice, John Marshall. During the next 30 years, he would hand down many equally important rulings, cementing the importance of the court for the nation.

  1. Let’s divide American History up, as most historians do- into pre Civil War and Post Civil War. Before the Civil War, what were the main decisions of the Supreme Court and what impact did they have?

The Supreme Court had a number of important cases prior to the Civil War, including the aforementioned Marbury v. Madison. Others included Dartmouth v. Woodward, McCulloch v. Maryland, and Gibbons v. Ogden. All of these created precedents that are still followed to this day, mainly in the area of expanding the power of the Federal government. But the last important decision of the Supreme Court before the Civil War seemed to reverse this trend.

In Dred Scott v. Sandford the court ruled that the federal government did not have the power to keep slave owners from taking their chattel into states where slavery had been abolished. This, of course, was precluded in 1865 when the XIII Amendment ended the institution of slavery.

  1. Now let’s look at Post Civil War, the period of “Reconstruction” if you will and take us to about 1900- what were the main decisions during that time frame, at least in your mind?

From 1865 to 1905, the Supreme Court seemed to retreat from the course of action that John Marshall had adopted. In Lochner v. New York, for example, the court ruled that a law limiting the number of hours that bakers could be asked to work in a week was unconstitutional. In what were known as the Slaughterhouse Cases, the Supreme Court held that the personal freedom guarantees of the XIV Amendment only provided protection against actions of the Federal government (as opposed to state laws). Finally, in Plessy v. Ferguson the court ruled that the principle of separate but equal facilities for persons of color was constitutional.

  1. Now from 1900–1950–We obviously had two World Wars – but what was going on with various Supreme Court Decisions during that time?

There was a brief period from 1905 to 1920 that seemed to suggest the court was returning to the viewpoint of John Marshall. In Standard Oil Company of New Jersey v. United States, the court ruled that the Federal government did have the right to prosecute Standard Oil under anti-monopoly statutes, and the Supreme Court also upheld the constitutionality of a law establishing the 8-hour work day for railroad workers. But the court took a more conservative stance from 1920 to 1938, striking down key provisions of Franklin Roosevelt’s New Deal. But after an attempt by FDR to expand the number of justices that would serve on the court, the court became more amenable to FDR’s legislation. And during the Second World War, the court upheld the constitutionality of his relocation of Japanese Americans.

  1. Now, I would not consider myself at all an expert on the period of Prohibition- but at one point, alcohol, or the making or consumption of alcohol was banned. Was the Supreme Court at all involved in this event?

Because Prohibition was created by a constitutional amendment, the Supreme Court had no jurisdiction to rule on it.

  1. I doubt if the framers of our government would have thought that the Supreme Court would be dealing with such critical issues- as when life begins, and the right to abortion or reproductive freedom- but Roe vs Wade seems to be the classic case in this regard. Your thoughts?

I am sure that the framers of the Constitution, while very wise men, could not see that far into the future. What they could do, in my opinion, was create a system of government that could react to changing circumstances. While some argue that the legal system should only try to imagine what the authors of the Constitution meant in 1787, I believe it is open to changing interpretation.

  1. Now, there are nine judges currently serving, and as such, there can be final votes, and there can be agreements and disagreements. Are the discussions civil, cordial and congenial or are there extreme heated discussion or is the public not privy to what goes on behind closed doors?

From what we have been able to determine, the discussions in the chambers of the Supreme Court have always been respectful. There have been disagreements to be sure, but the members of the court recognize the need for civil discourse.

  1. As I understand, these justices are appointed for life. I assume that some or all are allowed to retire due to ill health and then there is a process to replace them- could you walk us through that process?

Supreme Court justices can retire at any point in time, or they can be impeached (one actually was). Once a vacancy is created, the current president nominates a successor. The candidate is examined by the Senate Judicial Committee, and then is voted on by the Senate. Most nominees have been confirmed over the years, but some–like Harriet Myers a few years ago–have not.

  1. What have I neglected to ask about this third branch of our government?

As always, you have asked important questions.

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