Expert: Michael Troy - 1/25/2012

Question
The Supreme Court is unlike any other court in the United States. Please discuss what the courts were supposed to be/do and what they have evolved to over time. Moreover, address the nomination and confirmation process. How has this political process changed the Supreme Court: has the democratization surrounding the Supreme Court changed it for the better? Lastly, and maybe most importantly, there are multiple intellectual perspectives of constitutional interpretation: what are they and which one do you find most intellectually sound?

Answer
Hi Colby,

The main way the Supreme Court is different from any other is that it cannot be overturned.  It sits as the top of the heap as far as the various State and federal courts are concerned.

At the very basic, Courts do two things: enforce laws by meting out punishments to those who are determined to have broken them (criminal law) and resolve legal disputes between private parties (civil law).  That is still essentially what all courts do today.  The Supreme Court extends this by its self-proclaimed authority to determine which laws violate the limits placed on government by the Constitution.  This gives it the power to void unconstitutional laws or limit government practices that violate other rights.

The nomination structure is the same as it always has been.  The President nominates a potential Justice and the Senate votes to confirm or deny the nomination.  In the past, many nominations were generally non-controversial.  The President would generally pick qualified members of the bar and the Senate would confirm, often without even holding hearings.  There were always some exception when the Senate would balk at a nominee generally thought to be unqualified.

This began to change in the second half of the 20th century.  As the court began issuing more opinions that appeared to tread on policy making power, the political views of a Judge suddenly became more important.  The Senate became much more aggressive in challenging nominees who Senators thought might rule in ways that would limit some rights or go too far in protecting others.  All recent nominees have been subjected to lengthy and difficult scrutiny over both their professional qualifications and their outlook on cases.  Hearing often go on for more than a week.

Whether one thinks this is better or not probably depends on one's personal views.  Courts today are far more willing to through out laws or block government actions.  This might be seen as undue interference by an unelected branch, or it may also be seen as much more vigilant defense of the basic rights of the people.

Similarly, there are different views on Constitutional interpretation.  The basic ones are Original intent or meaning, and living Constitution.  Originalists basically try to determine how a right was understood at the time the Constitution (or Amendment) was adopted.  They try to apply that right in a modern context, but in the context of how it was originally understood.  Living Constitutionalists, believe the Constitution and its meaning must evolve and change over time to meet ever changing demands.  Justices, must use the various lessons of history since the time of adoption to administer decisions that will continue to protect the people.  Generally, I prefer originalism, not because it necessarily leads to better outcomes (it often does not).  I prefer it because the living constitution theory generally means a Justice ends up using his personal predilections of right and wrong to determine an outcome, rather than any sort of objective standard.

I hope this helps!
- Mike