Evolution of the Supreme Court with the Gilder Lehrman Institute of American History

Citizen Travelers – Travelers’ industry-leading, nonpartisan civic engagement initiative – and the Travelers Institute are teaming up to support and showcase conversations among leading thinkers in the areas of civic engagement and civic learning. 

In this conversation, viewers learned about the evolution of the United States Supreme Court and its role in defining America. We discussed some common misconceptions about the U.S. Supreme Court and some of the ways that its decisions have impacted our daily lives. 

This program featured Janice Brunner, Group General Counsel and Head of Civic Engagement at Travelers, Director of Curriculum Development and Instructional Design Tim Bailey from the Gilder Lehrman Institute of American History, historians Mary Sarah Bilder from Boston College Law School and Barbara A. Perry, the Gerald L. Baliles Professor in Presidential Studies at the University of Virginia’s Miller Center.

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What did we learn? Here are the top takeaways from Evolution of the Supreme Court with the Gilder Lehrman Institute of American History.

The Constitution doesn’t include many details about the Supreme Court. Bailey notes, “There was no court under the Articles of Confederation [the written document that established the functions of the national government of the United States after it declared independence from Great Britain]. There were only two branches of government.” Dr. Bilder adds, “In the Constitution, Article III says that there’s going to be a Supreme Court but doesn’t tell us very much about it.” That section is much shorter than Article I, which deals with Congress, and Article II, which discusses the presidency. To fill in the blanks, Congress has the power to regulate certain aspects of the Supreme Court as part of our system of checks and balances – for instance, increasing the original six-member Court to seat nine justices.

The Supreme Court can’t make the law, but it can encourage others to change it. While “each branch of government has its own lane,” as Bailey puts it, the Court sometimes uses its own work to send signals to the president and Congress. Because the Court’s job is to interpret the law, not to make it, justices can point out where the law falls short, prompting the legislature to act. Dr. Perry gave an example: the Ledbetter v. Goodyear case, where the court ruled against a woman’s equal pay claim. Justice Ginsburg’s dissent noted that Congress could pass a new law that would resolve such cases going forward – and it did just that.

The Court is always making the case for its own legitimacy. Dr. Bilder notes that because the Supreme Court, unlike the other branches of government, is not elected, “it has to think about how it should participate, what its role is in a representative democracy. Similarly, it doesn’t have enforcement capacity. It has the Marshals Service, but it can’t actually force anyone to follow its decisions.” Instead, it must explain them. She adds that the written opinions people are used to seeing today, where justices lay out their rationale, developed over time as a way to communicate the Court’s decisions to the American people and to lower courts around the country. 

Justices’ views can evolve throughout their tenure. In many instances, presidents appoint justices whose views align with their own. Dr. Perry cited a study showing that “80% of justices rule in the way that their appointing president hoped they would.” In some cases, however, as justices’ legal interpretations evolve and political parties take new positions on issues, they end up on opposite ends of the ideological spectrum – as in the case of Justices Souter, Blackmun and Stevens. Dr. Bilder adds that while many people are familiar with higher-profile cases dealing with more divisive issues, the Court decides many other cases that don’t fall neatly across ideological lines. 

Supreme Court decisions can’t be vetoed, but that doesn’t mean rulings can’t change over time. Perry notes that while the Supreme Court’s decisions are often final in the short term – not subject to change or veto by Congress or the president – in the long term, the Court can overturn its own precedent by using a subsequent case to repudiate an earlier decision. The other branches of government also influence the Court indirectly, for example by amending the Constitution or appointing new justices to vacant seats. Dr. Bilder adds, “The Court is in conversation. The Court is part of a very complicated constitutional system. At the end of the day, the American people have the power that’s vested in them by the Constitution. The Court basically works for the American people.” 

The Supreme Court is selective with the cases it takes. The number of cases coming to the Supreme Court each year on appeal has stayed about the same, in the thousands for the past 50 years, but the number it actually hears annually has reduced significantly, to about 80. “The Court has almost complete control over its docket,” Dr. Perry notes, and while it takes five votes to win a case, only four justices must vote to hear a case. When it comes to emergency cases, the Court can move those to the front of the line. “The court has emergency powers in some really important cases like death penalty cases or cases involving injunctions,” Dr. Bilder explains, where they aren’t required to hear oral arguments. 

There are many resources available to learn more about the Supreme Court. Dr. Bilder recommends checking out the Supreme Court’s website, where the Court’s opinions and direct audio from both past and current cases is available. She also suggests the Federal Judicial Center and the National Constitution Center. Dr. Perry recommends the Supreme Court Historical Society, Oyez (a multimedia judicial archive of the Supreme Court) and SCOTUSblog. The Gilder Lehrman Institute is also a wonderful resource, Bailey adds, with lesson plans and materials for educators teaching about the Supreme Court. 

This webinar is presented by Citizen Travelers, the nonpartisan civic engagement initiative of The Travelers Companies, Inc., for informational and educational purposes only. The nonpartisan views expressed by the speakers and/or the Gilder Lehrman Institute of American History and its employees are their own and do not necessarily reflect the views of Travelers or any of its employees. Travelers disclaims responsibility for any publication or statement by any of the speakers and/or the Gilder Lehrman Institute of American History.