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The Future of Population Health (Volume 101)
Quarterly Article
Lawrence O. Gostin
September 2021
Back to The Milbank Quarterly
Policy Points:
Article III of the US Constitution establishes the federal courts as a coequal branch of government: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may…ordain and establish.” Standing alone among the branches of the federal government, judges “shall hold their Offices during good Behaviour,” meaning for life. As Alexander Hamilton put it in The Federalist No. 78, judicial independence “is the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.”1 Of course, it is no secret that judges’ political ideologies do matter; judges do not just call balls and strikes, as Chief Justice Roberts said in his confirmation hearings.2 Yet, although the composition of federal courts has always been consequential, the current makeup marks a significant departure from history, which will have lasting repercussions across multiple domains, including public health and safety.
Examining past Supreme Courts helps to understand the magnitude of the recent ideological shift. The last time the Court held a conservative supermajority was in the early 1930s, to which President Roosevelt reacted by appointing strong liberal Justices to push his New Deal agenda.3 The Warren Court (1953-1969) is thought to be the most liberal in history; this Court expanded civil rights (e.g., ending dejure segregation and outlawing anti-miscegenation laws), civil liberties (e.g., establishing a right to privacy), and federal power.4 In the 1970s, the Court began to shift more conservative when President Nixon appointed Justices Burger, Rehnquist, Powell, and Blackmun and would eventually come to hold a conservative majority that would last for several decades.
1. Hamilton A. Federalist No. 78: the judiciary department. The Federalist Papers. J. & A. McLean; 1788. 2. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to Be Chief Justice of the United States, Committee on Judiciary, 109th Cong, 1st Sess (2005). 3. Sparrow PM. FDR and the Supreme Court: a lasting legacy. National Archives: Franklin D. Roosevelt Presidential Library and Museum. February 23, 2016. Accessed February 21, 2023. https://fdr.blogs.archives.gov/2016/02/23/fdr-and-the-supreme-court-a-lasting-legacy/
