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SUPREME COURT

In the early days of the republic, many citizens considered the judiciary the least powerful branch. This perception of the Supreme Court as a weaker, less prestigious branch made it difficult to find appointees willing to serve. Most of the early appointees had been deeply involved in the Revolution or the Constitutional Convention so their opinions were known both to the president and the Senate that approved them.

The early appointees were split between Federalists, who favored a strong federal government, and Anti-federalists, who would restrict the Supreme Courts power. In the end, the Federalists won. Both the first and second chief justices of the Supreme Court were appointed by George Washington, and helped set the groundwork for a strong and independent federal judiciary. When John Jay was appointed first chief justice by Washington in 1789, he had already served as president of the Continental Congress and as a diplomat to Spain. As chief justice, Jay refused to rule in advance on whether certain proposed government actions were legal, thereby helping to establish the independence of the Court. Jay resigned from the Court to become governor of New York in 1795. When George Washington appointed Oliver Ellsworth as the second chief justice, he knew Ellsworth would favor strong federal judicial power. Ellsworth s influence on America's judicial system continues today. It was Ellsworth who at the Constitutional Convention suggested the compromise plan of government: part federal, part national. As senator, he chaired the Judiciary Committee and was the principal author of the Judiciary Act of 1789, implementing Article III of the Constitution. While serving as chief justice for only six years, he started the tradition of one majority opinion, later adopted by Justice Marshall. Generally, Ellsworth upheld Congress's power to determine the jurisdiction of the federal courts and emphasized the adoption of English common law.

From the beginning, the Supreme Court was dominated by Federalists seeking stronger national power, but the third chief justice, John Marshall, is the one whose name is most closely associated with the expansion of the power of the federal judiciary. Chief Justice Marshall accomplished this expansion of power in several ways. First, he controlled how decisions were issued by continuing and strengthening Ellsworth s policy of majority opinions. Issuing only one opinion requires greater consensus and so appears to speak with a stronger voice, rather than the former British method of scriatum opinions issued by every justice. While hotly protested by some attorneys, the system of majority opinions led to a perception of unity of judicial thought. Marshall also influenced which cases were accepted on appeal, favoring cases highlighting conflict between the federal e government and state governments. Marshall further increased federal power, and especially the Supreme Court's power, through the actual decisions that were rendered. Marshall's numerous opinions, as well as his strong personality, helped to establish the tradition of referring to the Court according to the tenure of the chief justice.

The Anti-federalists' concerns about a strong national Supreme Court were valid since almost every opinion of Marshall's term emphasized federal government over states' rights. Marbury v. Madison created a firestorm when Marshall declared that the judicial branch had the final decision on the constitutionality of Congressional legislation and ruled a legislative act unconstitutional.

Congress's influence over the Supreme Court extends beyond attempting to control the judiciary through the Senate's Advice and Consent powers and the Congressional power of impeachment. Congress's most important power is the ability to enact legislation establishing the federal courts' jurisdiction. Congress controls what types of cases the Court hears, and whether the Supreme Court acts as a trial court or solely an appellate court. While the Judiciary Act of 1789 establishing jurisdiction is still in effect today, there have been numerous attempts to revise and restrict the Supreme Courts jurisdiction.

Originally, Supreme Court justices rode circuits to hear trials as well as appeals in their appointed states. Congress established these circuits and traditionally left it to the chief justice to assign them, generally to minimize the justices' travel. Given the poor transportation system at the time, riding circuit was an uncomfortable, often arduous trip. Indeed, riding circuit was so disagreeable that Congress occasionally reassigned circuits to punish justices with whose opinion it disagreed. Finally, in 1891, Congress created circuit courts of appeals, which allows the Supreme Court justices to sit as circuit judges, but did away with the requirement that they do so.

The Senate's Advice and Consent power requires two-thirds approval of any presidential nominee to the federal judiciary. This two-thirds requirement has led to bitter hearings on the qualifications of these appointees. Recent Supreme Court nominations have become media events, with televised hearings and passionate opinions aired nationally. Though media coverage has increased, such controversies are not just a modern phenomenon. Disputes and contentious hearings have surrounded Supreme Court appointments since the earliest days, when President Washington's nominee John Rutledgc was defeated. The bitter controversies between Federalists and states' rights' advocates were evident throughout the 1800s.The Civil War is foreshadowed by the nomination battles between 1840 and 1860, when over one-half of all Supreme Court nominees were rejected. The Senate uses its Advice and Consent powers much less today, with only about 20 percent of Supreme Court nominees rejected.

President Ronald Reagan's attempts to influence the Supreme Court by appointing conservative justices led to some contentious Senate hearings. In what was described as "[t]he most contentious confirmation battle in American history," D.C. Circuit Court of Appeals Judge Robert H. Bork was denied confirmation. Bork was a constitutional scholar whose confirmation hearings took place during the celebrations of the bicentennial year of the Constitution. The nationally televised hearings provided an opportunity for the entire nation to hear, discuss, and debate the Constitution as applied to modern life. While previous hearings were covered by the media, the extensive coverage of these rancorous hearings gave an unprecedented opportunity for the American public to become involved in influencing the Senate's confirmation vote. Bork became a living embodiment of the conflicting views of the role of the judiciary and methods of Constitutional interpretation. Ultimately, the Senate listened to the polls and the nominee, deciding that Bork's ideological views were not appropriate to the United States Supreme Court.

Most presidents attempt to appoint justices who they hope will vote according to the president's viewpoints. President Reagan, more than other presidents, required strong, expressed ideological affiliations from all his judicial appointees, regardless of the court. Nominees were scrutinized and nominated or rejected for their legal philosophies. Due to happenstance and the length of his term in office, President Reagan appointed more judges than any other president in history. By the time he left office, over half of all sitting judges had been appointed by Reagan. Altogether, he appointed more than four hundred federal judges, including four Supreme Court justices.

President George Bush appointed Clarence Thomas to the Supreme Court in 1991 to replace Thurgood Marshall, who was the first African-American appointed to the high court and had a reputation as a strong civil rights advocate. During the confirmation hearings of the Senate Judiciary Committee, most of the dispute revolved around civil rights groups' objections to Thomas's conservative views. Just before the vote of the full Senate, however, Anita Hill's allegations of sexual harassment were leaked to the press. The Thomas hearings were reopened and televised to an avid, polarized national audience. Once again citizens had a chance to directly influence their representative's vote on an appointment to the Supreme Court. Eventually, Thomas was confirmed in the closest confirmation vote of this century:52-48.

The Senate exerts more than Advice and Consent power over the judiciary; it possesses the power to remove federal judges from office through impeachment. In 1804, the Senate impeached U.S. Supreme Court Justice Samuel Chase, giving him the dubious honor of being the only Supreme Court justice ever impeached. George Washington had appointed Maryland's Samuel Chase to the Supreme Court in 1796. While he had an impressive history of public service, including signing the Declaration of Independence, Chase also had a controversial, discordant past. Chase, like other judges of his time, sometimes used his judicial powers for political purposes. He was so disliked during his tenure as justice that while riding circuit, lawyers in Philadelphia refused to practice before him. On January 5, 1804, the House voted 81-40-6 to decide whether to adopt articles of impeachment. The House ended up adopting eight articles of impeachment. But the motivation behind these proceedings was largely political, and one senator implied that Chase was merely the first Supreme Court justice to be tried, with perhaps Chief Justice Marshall next. After heated debate, the Senate found Chase guilty of two of the eight charges, but by less than two-thirds majority, leaving Chase in office.

Justice Chase's political legacy was to restrict the use of judicial impeachment for purely political differences. During Chief Justice Earl Warrens tenure, however, the Senate again tried to use impeachment for political purposes. While Warren is considered by many scholars to be the most influential chief justice since John Marshall, his constitutional opinions conflicted sharply with many senators. The Warren Court used the authority of the Fourteenth Amendment, which had lain virtually unused since the Civil Wir, to require states to afford civil rights previously only considered at the federal level. In Brown v. Board of Education, Thurgood Marshall guided the Supreme Court in its unanimous decision to overturn legal precedent and declare school segregation on the basis of race to be unconstitutional. In subsequent opinions, the Warren Court extended the procedural rights and protections of criminal law defendants. These decisions enraged states' rights advocates, who argued that the Court had veered into judicial legislation and away from Constitutional restraint. Eight state legislatures requested that Congress impeach Justice Warren. Bumper stickers declaring "Impeach Earl Warren" appeared around the country. While Congress did not begin impeachment proceedings, the outcry did lead to
Congressional attempts to change the Supreme Court's jurisdiction. From 1956 to 1960, seventy bills were introduced attempting to curb the Supreme Court's jurisdiction,
change requirements for appointees, or reduce the independence of the judiciary. Supporters of the Warren Court controlled the Senate, so none of the bills were enacted, although sometimes only by a single vote. Justice Warren eventually resigned from the Court due to ill health in 1969.

Together, the Chase impeachment trial and the call for Warrens impeachment serve to emphasize the importance of an independent judiciary in the American political process. Without the assurance of independent decision-making, a judge serves only at the whim of the legislature. If a judge can be removed for an unpopular opinion, there would be no check on legislative or executive powers.

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