The United States Supreme Court was established by the United States Constitution and the passage of the Judiciary Act of 1789, and had its first meeting on February 2, 1790. It handed down its first opinion on August 3, 1791 (West v. Barnes). (See more on SCOTUS early history.)  

This week, Supreme Court nomination hearings are on the brain and the news as President Biden’s pick for Justice Breyer’s seat is Ketanji Brown Jackson, a current judge on the U.S. Court of Appeals for the D.C. Circuit. Read more about Judge Brown Jackson and her legal career. 

One question you may have upon learning that the Supreme Court was established in 1790 is whether nomination hearings also date back to the 1790s? The answer is no- nomination hearings for Supreme Court justices began in 1916 with President Woodrow Wilson’s nomination of Louis Brandeis. Prior to this, there were no nomination hearings- the Senate simply voted yay or nay. However, Brandeis was the first Jewish nominee, and the hearings involved a great amount of controversy and anti-Semitism (For more on the history, see this NPR podcast transcript.) 

As we know, Brandeis was eventually confirmed and became an influential justice, penning hundreds of opinions (including Erie v. Tompkins, establishing the Erie Doctrine). 

Nomination hearings have continued since 1916, eventually becoming what Charles M. Blow for the New York Times calls “inconsequential theater” and “a petty partisan exercise– the party with the most votes in the Senate will get its way, regardless of what the hearings may reveal.” 

We all remember the “spectacle” of Justice Brett Kavanaugh’s confirmation hearings in 2018- resulting in tears and proclamations of “I like beer” from the (now confirmed) Justice. Kavanaugh’s hearing was surrounded by controversy as he was faced with credible accusations of sexual assault by Dr. Christine Blasey Ford. (And this was not the first time accusations of the type had been brought up during a confirmation hearing, if we recall Anita Hill’s testimony during Clarence Thomas’ confirmation hearings in 1991.)

Despite credible accusations of sexual assault and harassment, both Kavanaugh and Thomas were confirmed by the Senate- since, as Blow points out in the NYT article, historically it’s just been about whether the Senate has the votes to confirm or not (and not really about the candidate themselves, as evinced by the increasing theater of Senators doing things like bringing picture books to the hearing and asking the candidate their thoughts on it- yes, that really happened with Senator Ted Cruz, the book Antiracist Baby, and nominee Brown Jackson!). As such, if the Senate votes on party lines (with Vice President Harris breaking the tie), Brown Jackson should be confirmed. We’ll be keeping an eye on the situation! 

Submitted by Babler,Emma on April 20, 2022

This article appears in the categories: Law Library