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by William H. Benson

February 1, 2001

     With his left hand on the Bible and his right hand raised, George W. Bush stood before Chief Justice William H. Rehnquist and swore to uphold the Constitution while members of Congress and the nation watched.  Here, once again, was visual proof that the Founding Fathers’ idea of separating powers through differing branches of government and a system of checks and balances was still working, for all three branches of the federal government were represented there on that Saturday morning.

     The Supreme Court came into existence through Article III of the Constitution when the Founding Fathers determined that government would be ruled by laws–words written down in formal documents–rather than by men.  It was the duty of the Supreme Court to apply those laws to humans–their circumstances and situations.

     The Court was a unique American contribution to governmental science and it first convened on February 1, 1790 during George Washington’s administration.  It did not have a permanent home until 1935, its 146th year of existence when Chief Justice William Howard Taft, a former President, persuaded Congress to authorize the construction of a Supreme Court building.

     There have been some sad moments in the Supreme Court’s history.  For example, by the 1896 decision Plessy v. Ferguson, the Court defended the constitutionality of racial segregation and paved the way for the “separate but equal” Jim Crow laws of the south.

     Then, in the 1930’s the Supreme Court stood alone in opposition to FDR’s New Deal legislation and even struck down the NRA and the AAA as unconstitutional.  FDR came upon a scheme to pack the Supreme Court with his own appointees, and so he threatened the separation of powers and the checks and balances system.  Fortunately, his ploy failed.

     Another sad moment came in 1991 when Anita Hill testified before Congress, slurring Clarence Thomas’ character.  Whether her testimony was true or not, the damage was done.

     But there have been proud moments also.  In the 1803 decision Marbury v. Madison  John C. Marshall’s court assumed the power to declare laws unconstitutional, a power not explicitly granted by the Constitution; the Court from then on claimed “judicial review” as its own. 

     Then, in the unanimous 1954 decision Brown v. Board of Education Chief Justice Earl Warren’s court argued that “separate educational facilities are inherently unequal” and that they violated the equal protection clause of the 14th Amendment.  This led to the unraveling of segregation in all areas of public life.

     There have also been controversial moments.  In the 1973 decision Roe v. Wade the justices decided that government should not interfere in a woman’s decision to choose an abortion during the first trimester.  Thus, abortion became law, and the controversy is still with us.

     Also in the 1960’s the Court set forth stringent interrogation procedures for criminal suspects through Escobedo v. Illinois and Miranda v. Arizona.  The Court had swung far to the left in protecting the criminal.

     The 2000 Election decision to stop the recount in Florida will also go down as controversial.  What were they thinking?  Newsweek said, “It is a tricky business to read the minds of Supreme Court justices, who operate in one of the last truly secret precincts in Washington.”

     The day after the decision Clarence Thomas spoke to high school students and said that Congress and the Supreme Court exist in “entirely different worlds. . . . We happen to be in the same city.  We may as well be on entirely different planets.”    

     One of the four dissenting justices John Paul Stevens said, “Although we may never know with complete certainty the identity of the winner of this year’s election, the identity of the loser is perfectly clear.  It is the nation’s confidence in the judge [guarding] the law.”

     That may be so; however, Al Gore closed the campaign, the election, and the controversy with his stepping down speech.  “Now the U.S. Supreme Court has spoken.  Let there be no doubt, while I strongly disagree with the court’s decision, I accept it.”