Court role is still evolving
The Constitution says little about the judiciary except that it's independent.
The boisterous, often contentious, and always dramatic process of seating a new Supreme Court justice has begun. As has become customary, members of the Senate Judiciary Committee will pepper President Obama's nominee, Judge Sonia Sotomayor, with questions designed to shine a light on her legal leanings. And we can expect the nominee - as has also become customary - to give indeterminate responses.
The process will likely raise questions about whether the founders' intent for the Supreme Court has been faithfully followed; about Article III, the section of the Constitution dealing with the federal judiciary; and about the varying philosophies of judicial review.
So what exactly does the Constitution say about the Supreme Court?
Not much. Article III is the shortest and least detailed section of our national charter. One reason, says University of Pennsylvania historian Richard Beeman, could be that the founders spent so much time hammering out the specifics of the legislative and executive branches during the Constitutional Convention of 1787.
In his book, Plain, Honest Men: The Making of The American Constitution, Beeman wrote: "The character and extent of judicial power in the proposed new government had been badly muddled in the original Virginia Plan, and the delegates' understanding of the extent of judicial power had remained vague throughout most of the summer." That helps explain why questions about the founders' intent persist 222 years after the Constitution's drafting.
A touchy question
The framers' primary goal in Article III was to establish an independent judicial branch for their new nation, a move that set the government apart from any other of that epoch. In other countries, the power to dispense justice and interpret laws was limited to political leaders or monarchs, which James Madison described in the Federalist Papers as "the very definition of tyranny."The Constitution specifically calls for one Supreme Court. But it makes no attempt to describe the court's authority to rule on the constitutionality of state and federal laws. In fact, the founders did not even debate the matter of judicial review during the hot summer of 1787 - although some historians believe the delegates discussed the idea privately.
Whether the unelected Supreme Court should have the power to review elected officials' legislation was a touchy question. The delegates left it unanswered, sparking a debate that has endured for two centuries.
It wasn't until 1803, in Marbury v. Madison, that the Supreme Court ruled that "it is, emphatically, the province and duty of the judicial department, to say what the law is." And, according to constitutional scholar Linda R. Monk, it wasn't until 1958, in Cooper v. Aaron, that the Supreme Court explicitly decreed it has the last word on the Constitution's meaning.
Empowered by people
But the debate over the extent of the court's authority continues to this day. The framers essentially left it up to "we the people," and that is what the nomination hearings are about.An interesting aside: The Constitution also does not specify how many justices should sit on the court, leaving it up to Congress. The number has ranged from six (in 1789) to 10 (in 1863). After the Civil War, nine became the status quo until President Franklin D. Roosevelt attempted to "pack" the court with additional justices during the Great Depression. In response, in 1948, Congress passed a law setting the membership of the Supreme Court at eight associate justices and one chief justice.
At the National Constitution Center, we remind people that the Constitution touches our lives every day. In The Supreme Court: An Essential History, historians Peter Hoffer, Williamjames Hoffer and N.E.H. Hull explain that the Constitution created the Supreme Court, but congressional acts - and, by extension, the people - have defined and empowered it.
The nomination hearings will no doubt feature political theater, partisan posturing, and personal showboating. But they will nonetheless be a testament to the strength of our Constitution and our dedication to the founders' call to "establish Justice" and "secure the Blessings of Liberty to ourselves and our Posterity."
Linda E. Johnson is president and CEO of the National Constitution Center. For more information, see http://constitutioncenter.org.




