The United States Supreme Court

The Supreme Court of the United States is the highest federal court, established by Article III of the Constitution and organised by the Judiciary Act of 24 September 1789. It has nine members since 1869, each appointed by the President, confirmed by the Senate, and holding office during good behaviour — a tenure that in practice means for life. Conservatives regard the Court as the branch most exposed to the temptation of legislating, and the one whose legitimacy depends entirely on refusing that temptation.¹

The conservative case is not for a weak Court. It is for a Court that treats the constitutional text and the Framers’ structure as binding constraints rather than raw material. A judge who reads the document to mean what he thinks it should mean has not interpreted it; he has amended it without the two-thirds and three-quarters that Article V requires.

Key Takeaways

• The Judiciary Act of 1789 set the Court at six justices; the number moved between five and ten before settling at nine in 1869.
• Marbury v. Madison (1803) established judicial review of federal legislation.
• Franklin Roosevelt’s 1937 plan to add up to six justices was killed in the Senate on 22 July 1937 by a 70–20 vote to recommit, establishing a durable norm against court-packing.
• Antonin Scalia’s tenure from 1986 to 2016 made originalism and textualism the dominant conservative method of constitutional interpretation.
• Gallup recorded the Court’s approval at a then-record low of 40 per cent in September 2021, with further declines after the 2022 term.

History And Context

The Court began as the least considered branch. Its first sitting in February 1790 in New York produced no cases. John Jay resigned the chief justiceship in 1795 to become Governor of New York, judging the office of little consequence.

John Marshall, Chief Justice from 1801 to 1835, made it consequential. Marbury v. Madison (1803) asserted the power to declare an act of Congress void as repugnant to the Constitution — a power the text does not expressly grant and which Marshall derived from the nature of a written constitution and the judicial oath.² McCulloch v. Maryland (1819) read the Necessary and Proper Clause expansively, and Gibbons v. Ogden (1824) did the same for interstate commerce.

The Court’s worst hours are also matters of record. Dred Scott v. Sandford (1857) held that persons of African descent could not be citizens and that Congress lacked power to bar slavery from the territories. Plessy v. Ferguson (1896) blessed racial segregation for fifty-eight years. Korematsu v. United States (1944) upheld the internment of Japanese Americans. Each decision was, at the time, the settled law of the land.

The New Deal confrontation reshaped the modern institution. After the Court struck down major recovery legislation, Roosevelt proposed in February 1937 to appoint an additional justice for each sitting member over seventy. The plan collapsed, but the Court’s jurisprudence shifted in the same year with West Coast Hotel v. Parrish, ending the era of substantive economic due process.

The Warren Court of 1953 to 1969 produced Brown v. Board of Education (1954), Gideon v. Wainwright (1963), and Miranda v. Arizona (1966). Conservative critique of judicial activism dates from this period, formalised in Robert Bork’s writing and in the Federalist Society founded in 1982.³

The Conservative Position

The conservative argument rests on the separation of powers. Federalist 78 described the judiciary as the least dangerous branch because it commands neither purse nor sword and exercises judgement rather than will.¹ A Court that substitutes its policy preferences for the legislature’s inherits the will it was designed to lack, without the accountability that would justify it.

From this follows the interpretive method. Originalism holds that constitutional provisions bear the meaning their words had when ratified. Textualism holds that a statute means what its words say, not what its sponsors hoped. Scalia’s argument for both was practical as much as philosophical: a judge who abandons the text has no limiting principle and no answer to the charge that he is voting rather than judging.⁴

Conservatives also defend life tenure and resist term-limit proposals. Judges insulated from re-election can rule against the popular current, which is the point of a bill of rights. Proposals for eighteen-year staggered terms would align each appointment with a presidential cycle and make the Court a further object of electoral bargaining.

On court expansion, conservatives treat the 1937 defeat as a settled constitutional convention. The number nine has no textual basis, but the norm against altering it for partisan advantage is what keeps the Court from becoming a rotating instrument of whichever coalition last won.

Finally, conservatives argue that returning contested questions to legislatures is a feature. Dobbs v. Jackson Women’s Health Organization (2022) was defended on this ground: not that abortion should be prohibited, but that the Constitution is silent and the question therefore belongs to elected bodies.

Differing Positions

Critics answer that originalism is neither neutral nor consistently applied. The historical record is contested, incomplete, and sometimes silent on modern questions, leaving judges to select among competing accounts — a discretion no narrower than the one originalism was meant to eliminate. Decisions expanding Second Amendment protection and narrowing agency authority are cited as instances where the method produced conservative outcomes that the founding record does not clearly compel.

A second critique holds that a counter-majoritarian body appointed for life is difficult to reconcile with democratic self-government, particularly when the confirming Senate over-represents small states and several justices were appointed by presidents who lost the popular vote.

A third position defends the living-constitution approach on its own terms: a document of 1787, amended twenty-seven times in 238 years, cannot govern a society it could not foresee unless its general clauses — due process, equal protection, cruel and unusual — are read against present understanding rather than eighteenth-century usage.

References

1. Alexander Hamilton, Federalist No. 78, in The Federalist Papers (1788).
2. Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803).
3. Robert H. Bork, The Tempting of America: The Political Seduction of the Law (Free Press, 1990).
4. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law (Princeton University Press, 1997).