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Like the other branches of the national
government, the court system has evolved over the course
our history. The structure of the court was not fully
defined in the Constitution. The first effort to organize
the court and clarify its duties and limitations came
after the ratification of the Constitution in the Judiciary
Act of 1789, and one of the Court’s most important
powers, judicial review, was not established until John
Marshall’s long tenure as Chief Justice. Over
the centuries, the number of justices on the court has
sometimes varied and the authority of the court has
waxed and waned. Yet for most Americans, the robed figures
who pass judgment on the constitutionality of legislation
and who resolve major conflicts between states are among
the most respected citizens in the nation. While the
bench was once occupied only by white men, today’s
court reflects the steady growth of equality and democracy:
its modern membership has included African Americans,
women, and representatives of ethnic groups within our
society.
In this issue, History Now examines the functions of
the court, the court’s composition, and the philosophical
differences that have emerged within its membership
over the centuries. It also provides a case study of
one of the major crises in the history of the modern
court: Roosevelt’s “court packing”
plan, and provides a portrait of one of the justices,
Sandra Day O’Connor. Each of these essays can
serve as the basis for critically important lessons
for our nation’s future voting citizens.
In “The Form and Function of the Supreme Court,”
Professor Charles Anthony Smith walks us through the
origins of the court, its structure and jurisdiction,
and its decision-making processes. Next, in “The
Supreme Court Then and Now,” A.E. Dick Howard
traces the expanding domain of the Supreme Court, from
the establishment of the principle of judicial review
to the nineteenth century focus on issues of federalism
to the extraordinary range of issues it grapples with
today. In the process, Howard raises several perplexing
issues about the role of an unelected body in a democracy.
In “The Marshall and Taney Courts: Continuities
and Changes,” Professor Richard Bernstein examines
two of the most influential Chief Justices and the impact
of their judicial philosophies on the evolution of the
court. In “FDR’s Court-Packing Plan: A Study
in Irony,” Richard Menaker offers a fascinating
look at one of the most controversial events in the
court’s history. Menaker sets the historical context
for Roosevelt’s radical proposal and offers a
revisionist interpretation of the impact his plan had
on the court’s shifting view of New Deal legislation.
Finally, Meryl Justin Chertoff’s essay, “Sandra
Day O’Connor: A Life of Action” provides
a compelling portrait of one of the modern court's path-breaking
justices.
As always, our archivist Dr. Mary-Jo Kline provides
a wealth of resources for those teachers who want to
read more on each of these topics. And, our teacher-reviewers,
Bruce Lesh, winner of the OAH Teacher Award, and Philip
Nicolosi, winner of the NCHE Gagnon Prize for Excellence
in Teaching, offer reviews of two excellent books that
might be used in the classroom. Our master teachers
have created lesson plans for elementary, middle school,
high school, and AP classes. And don’t miss this
issue’s interactive feature, “15 Supreme
Court Cases Every High School Student Should Know.”
Carol Berkin
Editor, History Now
Carol Berkin is Presidential Professor of History
at Baruch College and The Graduate Center, City University
of New York. She is the author of several books including
Jonathan Sewall: Odyssey of an American Conservative,
First Generations: Women in Colonial America, A Brilliant
Solution: Inventing the American Constitution,
and Revolutionary Mothers: Women in the Struggle
for America's Independence.
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