In 1787, representatives from the former British colonies drafted a new constitution. Citizens everywhere wanted to know what kind of government we had created. Would we remain free or would we return to tyranny under a new kind of king? Benjamin Franklin might have had the best answer of all. As he was walking out of Independence Hall in Philadelphia after the work of creating a new government was finished, a woman in the crowd shouted out, “Doctor, what have we got? A republic or a monarchy.” Franklin replied simply, “A republic, if you can keep it.”
Our Constitution helped form a government designed to protect our freedoms. But words on old parchment are not enough. One of the most-enlightened constitutions in modern history was the Soviet Union’s. It guaranteed all sorts of freedom and the rights of individuals. But that constitution wasn’t worth the paper it was printed on. People were not free to worship as they pleased, were not free to speak their minds without being imprisoned, and could not even listen to the music they liked without fear. The Soviets were not alone. There are many constitutions in many nations that talk the talk of freedom, but those nations fail to walk the walk.
Of course, America has not always respected the promises of freedom in our Constitution. We have struggled long and hard to bring freedom and justice to all Americans, and more work remains. But through all our struggles, we have had one constant: An independent Supreme Court that takes seriously its duty to uphold the Constitution.
The Constitution created a court system that was independent of both the president and Congress. Once the president appoints a Supreme Court justice and once the Senate approves that choice, that justice takes orders only from the Constitution, not from any bureaucrat, not from any general, not from any member of Congress, and not even from the president. In other words, no one can force the Supreme Court to rule in a manner contrary to what the law and the Constitution say.
There are nine justices on the Supreme Court. When a vacancy arises, the President nominates a replacement who must be confirmed by the Senate before becoming a justice. If the Senate refuses to confirm a nominee, the President may nominate someone else. To ensure their independence from political interference, justices are appointed for life and may be removed only for bad behavior after an impeachment by the House of Representatives and trial by the Senate.
In the United States each state has its own court system which decides ordinary disputes and matters involving state law. State courts also can decide some matters of federal law if they are properly presented. At the same time, there is the parallel federal court system. It has jurisdiction over cases that involve federal law, such as federal criminal cases and federal agency regulations. The federal courts also handle disputes between different states and cases where people in one state sue those in another.
With all these different court systems scattered across the land, there is a danger that some lower courts could interpret the same federal laws and the Constitution differently. A person in one state might then be given greater or fewer freedoms than someone living in another state. But that wouldn’t be right. Every person should receive the same protections given by our Constitution as everyone else receives, no matter where that person may live. That is why people have the right to ask the Supreme Court to review decisions from the state and lower federal courts. It is the Supreme Court that makes sure the rulings from these different courts are consistent—not only with each other but with federal law and the U.S. Constitution.
When a court in one state interprets the same federal law or constitutional provision in a way that is at odds with a court in another state, it is the job of the Supreme Court to step in and say which one is right. If neither lower court got it right, the Supreme Court then decides what the correct interpretation is. That way, every person will have the same rights as every other person regardless of location.
What if the court in one state said that “freedom of the press” didn’t allow censorship of student newspapers by a high school’s principal, while the court in another state said it was perfectly okay to censor students because most students are under 18 and can’t vote yet? Should students in one state have more protection against censorship than students in another state? And exactly what does “freedom of the press” mean when the press is a student newspaper financed with taxpayer dollars? These are not easy questions to answer, so it is understandable that different courts have come up with different answers over the years. That is why the Supreme Court has had to take up several cases in recent years dealing with the freedom of speech and the press in school settings. The Court has taken these cases to make sure that school officials everywhere can both maintain order and discipline while at the same time respecting students’ freedoms.
State and local governments are bound by the Constitution. One of the most important tasks for the Supreme Court is to make sure that no state or local law is carried out in a way that violates federal law or the Constitution. Suppose, for example, that a city gets tired of protestors and passes a law saying that anyone protesting, even peacefully, after dark will be put in jail. If a protestor objects, she might sue and argue that the law violates the First Amendment to the United States Constitution. That amendment reads that no law can take away “the right of the people peaceably to assemble.” Based on past Supreme Court rulings, a court that hears such a lawsuit would be compelled to tell the city that it cannot arrest and jail anyone simply for peacefully protesting, even after dark. And if the lower courts were to uphold such a law, it would be the job of the Supreme Court to set them straight.
If it weren’t for the Supreme Court, it is quite likely that the federal government would be far more powerful than it is today. Congress sometimes passes a law not knowing, and sometimes not even caring, if the law is constitutional. For example, Congress has tried to force state governments to do things that the states did not want to do—such as imposing harsh new, costly regulations. In one famous case, the federal government told the State of New York to store dangerous nuclear wastes that the federal government was responsible for. New York objected, saying it shouldn’t have to do the federal government’s work and take the blame if something went wrong. The Supreme Court agreed with New York and said that the state couldn’t be forced to do the work of the federal government.
Other times, presidents—both Democrat and Republican ones—have ignored laws passed by Congress or have done things that Congress never authorized. When Congress passes bad laws, or the president refuses to obey the law, people often can sue and ask a court to set things right. If the case is important, the Supreme Court will decide who is right. If it finds that the Congress passed an unconstitutional law, then the law will not be enforceable. If it finds that the president has acted without proper authority, then the president will back down.
Sometimes the Supreme Court makes mistakes. We’ll be exploring some of those mistakes in future essays. There are cases where the Supreme Court refused to respect the rights of the poor, of citizens with Japanese ancestry, and of African Americans. We’ve seen cases where the Court has permitted local governments to take away people’s homes to help a large corporation. But through it all, most Americans have come to respect the Court as an authority on the Constitution.
The Supreme Court has no army. It raises no taxes to support itself. Justices of the Court cannot arrest and jail a government official who misbehaves. So how can it tell Congress and even the president to back down? Its power comes not from any army or angry mobs. Its power comes from the great respect and voluntary obedience we give to its decisions.
Even if we disagree with a Court decision, we all realize it is in our best interest to follow that decision. We may complain about it. We may try to bring a new case to get a different result. We even may try to amend the Constitution. But so long as the Court has ruled, every member of our state and local governments, from a police officer walking the beat to a governor and to the president, will obey the Supreme Court.
While the Supreme Court is powerful, it is our Constitution that is most powerful. Our Constitution with its Bill of Rights and many other amendments is the law of the land and that law protects our liberties. And it remains the law of the land because the Supreme Court respects the Constitution and the people respect the Supreme Court. In nations that do not enjoy constitutional freedoms, you will also not find an independent Supreme Court that is respected by both the people and the government.
Our powerful court system has made the difference between a Constitution with substance and one of empty promises. It is our court system that separates us from those nations with only paper freedoms and promises that are never kept. Benjamin Franklin wasn’t sure if we could keep our republic. Fortunately for us, our Supreme Court has done much to help us keep it.
