The Supreme Court: The Judicial Power of the United States

NCSS.D1.1.6-8. Explain how a question represents key ideas in the field.

NCSS.D2.Civ.3.6-8. Examine the origins, purposes, and impact of constitutions, laws, treaties, and international agreements.

NCSS.D2.Civ.4.6-8. Explain the powers and limits of the three branches of government, public officials, and bureaucracies at different levels in the United States and in other countries.

NCSS.D2.Civ.5.6-8. Explain the origins, functions, and structure of government with reference to the U.S. Constitution, state constitutions, and selected other systems of government.

NCSS.D4.1.6-8. Construct arguments using claims and evidence from multiple sources, while acknowledging the strengths and limitations of the arguments.

This lesson presents an introduction to the U.S. Supreme Court. Students will read relevant sections of the Constitution and analyze how the Constitution works to enhance judicial independence. They will also learn about the landmark case of Dred Scott v. Sanford (1857), and track the movement of that case through the court system.

• Provide an introduction or further explanation of the following terms, used in the readings from Article IX of the Articles of Confederation and Article III and Amendment XI of The United States Constitution:
  • Inferior court: Either a district or circuit court whose decisions can be appealed to a higher court. The Supreme Court is the highest court in the land.
  • Jurisdiction: Authority or legal power to hear and decide cases.
  • Original jurisdiction: The court in which a case first appears, or originates, is said to have original jurisdiction. The Supreme Court has original jurisdiction in cases involving ambassadors, certain public officials, and disputes between states. These cases rarely come to the Court.
  • Appellate jurisdiction: A court that hears a case that has already been heard by another court is said to have appellate jurisdiction. In other words, a court may exercise appellate jurisdiction when one of the parties is dissatisfied with a lower court’s ruling and has asked, or appealed, for a higher court to review the decision.
  • “Law and fact”: The court with original jurisdiction judges the facts of the case as well as what laws apply. Except in those cases in which the Supreme Court exercises original jurisdiction, the justices rule only on the law and not on the facts of a case. Therefore, no witnesses are called.
  • You can also download an annotated version of the readings from the Articles of Confederation and the Constitution, available here as a PDF.
• Activity 3 examines a Supreme Court case, Dred Scott v. Sandford (1857), and how it moved through the court system. This case is commonly included in the curriculum because of its importance. Its movement through the court system gives students an example of how the judicial process works. An in-depth study of Dred Scott v. Sandford is not within the scope of this lesson.

Activity 1. What Do You Know About the Supreme Court?

Show students the contemporary Supreme Court Cartoon (top of page) from Famous Trials, a link from the EDSITEment resource Internet Public Library. The cartoon depicts three Supreme Court justices. Guide the discussion with questions such as:

• What does it mean to declare a law unconstitutional? What, if anything, does the Constitution say about “declaring laws unconstitutional”?
• What is supposed to be humorous about the cartoon?
• What do you know about:
  • what the Supreme Court does?
  • how someone is appointed to serve on the Supreme Court?
  • who serves on the Supreme Court?
  • how the Court functions?
  • how a case gets to the Supreme Court?
  • why the Supreme Court agrees to review a lower court’s decision?
  • the kinds of cases heard by the Supreme Court?

Ask a volunteer to write students’ answers on chart paper.

If the discussion indicates a need for basic information about the Supreme Court, share a summary designed for sixth- to eighth-graders. Ben’s Guide, a link from the EDSITEment-reviewed website Internet Public Library, offers brief articles on The History of the Constitution, The Supreme Court, and Cases Brought Before the Court. Share this information with students as appropriate to the specific needs of your classroom.

Activity 2. How Was the Federal Judiciary Created?

"In unfolding the defects of the existing Confederation, the utility and necessity of a federal judicature have been clearly pointed out."

—From Federalist #78 on the EDSITEment resource Avalon Project

According to The Debates in the Federal Convention of 1787 reported by James Madison: May 29, on the EDSITEment-reviewed website Avalon Project, the central question of the Constitutional Convention was brought to the floor on the third day:

Mr. RANDOLPH then opened the main business. He … commented on the difficulty of the crisis, and the necessity of preventing the fulfillment of the prophecies of the American downfall. He observed that in revising the federal system we ought to inquire:

1. into the properties, which such a government ought to possess
2. the defects of the confederation
3. the danger of our situation
4. the remedy.

One of the defects in The Articles of Confederation (1781), also available on Avalon Project, was its failure to provide for a federal judiciary. 

1. Share with students the following passage from Article IX of the Articles of Confederation, on Avalon Project:

The United States in Congress assembled shall also be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States concerning boundary, jurisdiction or any other causes whatever … appointing courts for the trial of piracies and felonies committed on the high seas and establishing courts for receiving and determining finally appeals in all cases of captures, provided that no member of Congress shall be appointed a judge of any of the said courts.

These are the only provisions related to a national court in the Articles of Confederation. Congress itself was the court of last appeal in disputes between states. In cases of piracy, the Congress appointed a court. What are the disadvantages of having the Congress, the body that makes laws, “be the last resort on appeal in all disputes and differences now subsisting or that hereafter may arise between two or more States”?

The Articles of Confederation did not embrace the principle of separation of powers. The judiciary under the Articles was not independent. Why might the Founders (in this first attempt at a government) have opted to give Congress these judicial responsibilities? (It should be noted that, in England, the House of Lords is the highest court.) What are the potential disadvantages of not separating the judicial and legislative powers?

The adoption of the Constitution would create a government quite different from England’s parliamentary democracy and, in fact, any other government in operation at the time. Next, students will look at the Constitution and how it differs from the Articles of Confederation.

2. Unlike The Articles of Confederation, The United States Constitution (1787), available on the EDSITEment resource Avalon Project , created a national judiciary. Read with the class the text of Article III.

Use the following questions to lead students in a discussion about the basic facts of Article III.

• How did Article III of the Constitution change the character of the judiciary as set out in the Articles of Confederation?
• What kinds of courts does the Constitution provide for? How does it distinguish between the Supreme Court and inferior courts?
• What kinds of cases did the Founders expect would come before federal courts?
• What, if anything, does the Constitution say about how the Supreme Court should operate?
• Is the Supreme Court designed as a co-equal branch of the government?
• What general rules about the judicial system (such as trial by jury) are specified in the Constitution?

Students will look at the development of one Supreme Court case, the landmark Dred Scott v. Sandford (1857). In 4, the class will return to the Constitution for analysis of how the Founders designed the document to guarantee judicial independence.

Activity 3. How Does a Case Find Its Way to the Supreme Court?

In one important way, Dred Scott v. Sandford is not typical—it is one of the most significant cases ever decided by the Supreme Court. It was selected for inclusion here because most students will study the case at some time and because its path through the judicial system shows how a case proceeds through the courts.

1. Share with the class the Summary of Dred Scott v. Sandford offered by Landmark Cases of the Supreme Court, an exhibit of the Supreme Court Historical Society, a link from the EDSITEment-reviewed website History Matters.
2. Have students use a map such as the U.S. Territorial Map 1850 on the EDSITEment-reviewed website American Studies at the University of Virginia to track events as explained in the activity Trace Dred Scott's Travels on a U.S. Map (from Landmark Cases of the Supreme Court, an exhibit of the Supreme Court Historical Society, a link from the EDSITEment resource History Matters).
3.  Share the Diagram: How the Case Moved Through the Court, also from Landmark Cases of the Supreme Court. 
4. If you wish and if time allows, let students discuss their predictions for the outcome of Dred Scott v. Sandford. Some suggested discussion questions:

Part I: The Facts

1. What made Dred Scott believe he should no longer be considered a slave?
2. What did the first court that heard the case decide?
3. The Supreme Court of Missouri reversed the decision. For what reason?
4. Why was Scott able to sue in federal court? What did the federal court decide?
5. What did Scott do next?

Part II: Analysis

1. Disagreements over slavery were more heated than ever in 1857. What affect might this have on the Supreme Court’s decision?
2. Some slaves had successfully sued for freedom. Does a successful suit by a slave seem more or less likely in 1857?
3. Chief Justice Taney was a strong supporter of slavery. Another justice, Peter V. Daniel, supported slavery so strongly, he refused to travel north of the Mason-Dixon line. Other justices also supported slavery. Do you think their personal beliefs will enter into the decision?
4. It’s difficult for us to understand now, but in 1857 slaves were considered property. Imagine this hypothetical situation: The state next to yours declares the possession of gaming systems illegal. You take your gaming system—your property—with you on a trip to see a relative in that state. Should a policeman have the right to take your system from you? Now let’s change the argument a bit. Let’s say the state next to yours legalizes the possession of some dangerous drug. Should someone be able to bring that drug into your state legally? Your neighborhood? Do these hypothetical situations compare to what happened to Dred Scott, who was considered property?
5. Share with students the abstract of the case from the EDSITEment resource Oyez. Allow time for students to reflect on the decision and compare it to their predictions. Review the basic facts of this case including the Diagram: How the Case Moved Through the Court (from Landmark Cases of the Supreme Court, an exhibit of the Supreme Court Historical Society, a link from the EDSITEment-reviewed website History Matters)
   1. How and why did the case end up in the Supreme Court? Why did the Supreme Court agree to decide this case?
   2. What did the Supreme Court decide? What was the reasoning used by the justices? Were the facts in the cases ruled on by the lower courts ever questioned in the decision of the Supreme Court?
   3. Look back at the earlier list the class compiled of what they knew about the court. What would they now change or add?

Activity 4. How Does the Constitution Provide for an Independent Judiciary?

"It seems to me that a major reason the Constitution has kept the ship of state afloat is the existence of an independent judiciary as a co-equal branch of our federal government. It is easy today to see the need for an independent judiciary, with the authority to enforce the terms of a written constitution, but back in 1787, when the Founding Fathers were drafting our Constitution, it was an entirely novel concept. I believe that the creation of an independent constitutional court, with the authority to declare unconstitutional laws passed by the state or federal legislatures, is probably the most significant single contribution the United States has made to the art of government.

When Thomas Jefferson wrote the Declaration of Independence in 1776, one of the reasons he gave for the need to declare independence from Great Britain was that King George III "ha[d] made Judges dependent on his Will alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries." The drafters of the Constitution addressed this in Article III of our Constitution, which confers upon the judiciary life-long tenure during good behavior, and contains a prohibition against diminution of compensation while in office. Article III judges can only be removed from office through the mechanism of impeachment.

… Without an independent Judiciary, the Constitution may not have survived to, as Chief Justice Taft said, "secur[e] the blessings of individual liberty to all the people of the United States under a government of law and order." And much of the credit is due to the foresight of the drafters of these Charters."

— Chief Justice William Rehnquist’s remarks at the rededication of the National Archives (September 17, 2003).

1. When we talk about judicial independence, we are generally referring to:

• The independence that federal judges and justices have as a result of the separation of powers—that they cannot be pressured by either of the other two branches of government to decide a case in a particular way.
• The independence that judges and justices enjoy because they are not elected and, therefore, can make their decisions without having to worry about whether the public likes the decisions and will be willing to re-elect them.

In Justice Rehnquist’s remarks above, what does he cite in the Constitution as important to the establishment of an independent judiciary?

2. The Founders worked to establish judicial independence in The United States Constitution, available on the EDSITEment-reviewed website Avalon Project. Review the relevant passages with your students. If desired, use the annotated selections from the Constitution (available as part of the downloadable PDF for this lesson) as you conduct the following discussion with the class.

• Why did the Framers of the Constitution assign the House the responsibility for impeachment of federal judges and the Senate the task of approving appointments to the court and removing federal judges through impeachment trials (Article I)?
• Why, in Article II, give the president the power to appoint Supreme Court judges? Why do you think the Founders decided to have federal judges appointed instead of elected?
• Article II specifies that the president’s Supreme Court appointments are made only “by and with the advice and consent of the Senate”? Why? What would be some possible disadvantages of having the president appoint Supreme Court justices without any check on that power? What would be some possible disadvantages of having the Senate appoint Supreme Court justices without any check on their power?
• Why are all federal judges appointed for life? What are the advantages and disadvantages (Article III)?
• Why specify that a judge hold a lifetime appointment only with “good behaviour”? Why not define “good behaviour” more specifically (Article III)?
• Why specify that the salary of judges and justices “shall not be diminished during their continuance in office” (Article III)?

Activity 5. Personal Views versus Judicial Independence

Students may have reacted strongly to the decision in Dred Scott v. Sandford. So did most Americans of the time, who did not believe in slavery.

1. Share with the class the following summary of the decision:

"The nine justices of the Supreme Court of 1856 certainly had biases regarding slavery. Seven had been appointed by pro-slavery presidents from the South, and of these, five were from slave-holding families. Still, if the case had gone directly from the state supreme court to the federal supreme court, the federal court probably would have upheld the state's ruling, citing a previously established decision that gave states the authority to determine the status of its inhabitants. But, in his attempt to bring his case to the federal courts, Scott had claimed that he and the case's defendant (Mrs. Emerson's brother, John Sanford, who lived in New York) were citizens from different states. The main issues for the Supreme Court, therefore, were whether it had jurisdiction to try the case and whether Scott was indeed a citizen.

The decision of the court was read in March of 1857. Chief Justice Roger B. Taney—a staunch supporter of slavery—wrote the "majority opinion" for the court. It stated that because Scott was black, he was not a citizen and therefore had no right to sue. The decision also declared the Missouri Compromise of 1820, legislation which restricted slavery in certain territories, unconstitutional.

While the decision was well-received by slaveholders in the South, many northerners were outraged. The decision greatly influenced the nomination of Abraham Lincoln to the Republican Party and his subsequent election, which in turn led to the South's secession from the Union."

— From Dred Scott's Fight for Freedom, on the EDSITEment resource Africans in America

2. The judges in Dred Scott v. Sandford made their decision from a pro-slavery perspective. Their personal views clearly influenced their decision. They held certain ideas about slavery and a number of related issues, including the political challenges the country was facing at the time. Their personal views clearly influenced their decision in this case. However, these views did NOT undermine their judicial independence. They were not influenced by the other branches of government or a need to appeal to voters.

There was likely a pro-slavery bias on the court that wrote the decision in Dred Scott v. Sandford. In addition, the judges were motivated by the belief that settling the slavery question one way or the other would reduce friction between slave and free states.

Instead, strong reaction to the Supreme Court’s decision in Dred Scott v. Sandford when it was issued contributed to the sharp divisions within the United States. Most historians believe that the decision was an important factor in bringing about the Civil War. This decision also resulted in the passage of Amendment XIV, which begins by establishing the rules of citizenship. Read Amendment XIV, Section 1 of The United States Constitution, available on the EDSITEment-reviewed website Avalon Project. What citizenship rules does Section 1 outline?

How did learning about Dred Scott v. Sandford demonstrate how a case ends up in the Supreme Court? How does it demonstrate what the Supreme Court does? Ask students—individually and in writing—to create a one- or two-paragraph overview of the Supreme Court. They should imagine they are preparing materials for an introductory handout for next year’s students, using Scott v. Sandford as an example. What are the key points in understanding what the Supreme Court is and how it functions?

• The EDSITEment reviewed website Africans in America offers much more (including some primary material) on the Dred Scott v. Sandford decision. Begin near the bottom of the page with Narrative: Judgment Day and then follow the various links related to the case.
• Interested students can read Alexander Hamilton’s Federalist #78 on the EDSITEment-reviewed resource The Avalon Project at Yale Law School to see the arguments Hamilton made for the design of the judiciary as found in the Constitution. How prescient was Hamilton in his predictions?
• Dred Scott v. Sandford was a controversial decision. Interested students can complete research on some other controversial decisions. Some particularly controversial Supreme Court cases are featured at Landmark Cases of the Supreme Court. What happens when the Supreme Court hands down a controversial decision? How does this affect respect for the law? How are Supreme Court decisions refined or changed?