The framers of the Constitution never envisioned a Supreme Court that essentially makes policy. Article 1, the Legislative branch, is lengthy and detailed, the framers saw both houses of Congress as the democratic “playing field,” the powers of the Executive branch is briefer, and, Article 3, the Judiciary is far briefer, the section says judges will hold positions during “good behavior,” translates in as long as they choose to serve, and, outlines a long list of areas of possible disputes and a single line that today is the source of almost all cases that rise to the Supreme Court, “In all the other Cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.”
Could Congress limit the scope of the powers of the Supreme Court? For another day …
Our legal system is based on “precedent,” applying previous decisions to current circumstances, while not mentioned in the Constitution it is the bedrock of the law, the term stare decisis, which is legal shorthand for respect for precedent and Latin for “to stand by things decided.”
The Court frequently reflected the body politic, the views of the masses, or, the political biases of the justices, Dred Scott v Sanford (1857) ruled slaves are property and neither the Congress nor states can treat them otherwise.
The Constitution of the United States recognises slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.
The decision made the war inevitable.
The Union victory in the war resulted in passage of three constitutional amendments,
The 13th Amendment ended slavery,
Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. And Congress shall have power to enforce this article by appropriate legislation.
The 14th Amendment granted and defined citizenship,
All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
And the 15th Amendment the right to vote to all,
The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude and The Congress shall have power to enforce this article by appropriate legislation.
The Civil Rights Act of 1866 enforced the amendments,
- All persons born in the United States were entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude.
- As citizens they have the right to enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property.
- Persons who denied these rights to former slaves were guilty of misdemeanour and faced a fine not exceeding $1000 or imprisonment not exceeding one year, or both.
- Authority to prosecute cases was given to the United States district attorneys, marshals and deputy marshals and the Supreme Court.
With the end of Reconstruction (1877) the Supreme Court began to erode the 13/14/15 Amendments and the Civil Rights Act of 1866 (Read Lawrence Goldstone, Inherently Unequal: The Betrayal of Civil Right by the Supreme Court, 1865-1903 (2011))
… the justices twisted the law to their own purposes …. But that’s what the Supreme Court justices do, grabbing hold of whatever precedent they need, “cherry-picking from a vast array of potential paths to fashion and re-fashion the law to suit.” So constitutional law has no principles, no meaning beyond whatever politics or prejudices the justices want to impose. And the courageous struggles that men and women waged more than a century ago to make a more perfect union were nothing more than shadow plays, flickering faintly in the darkness.
The erosion of the rights of the formerly enslaved, referred to as Jim Crow laws, culminated in Plessy v Ferguson (1896), a Louisiana law that segregated railroad cars within the state. Plessy, who was 7/8 white and 1/8 Black was ordered to the leave the White car on the train and when he refused was ejected, the Court refused to address Plessy’s race, ”a matter for the state,” and accepted the “reasonableness” of the Louisiana regulation,
“… the state legislature is at liberty, to reference to established usages, customs and traditions of the people and with a view to their comfort and preservation of public peace and good order. Gauged by this standard, we cannot say that a law that authorizes or even requires the separation of the two races in public conveyances is unreasonable.”
Whether it was the concept of stare decisis or the “…with reference to established usages, customs and traditions of the people and with a view to their comfort and preservation of public peace and good order it took sixty years before Brown v the Board of Education (1954) to unanimously rule that “separate but equal” was unconstitutional.
Recently the Court has become a more activist Court; not bound by precedent and expressly seeking issues it could address.
Citizens United (2010)reversed century-old campaign finance restrictions and enabled corporations and other outside groups to spend unlimited funds on elections. Restrictions on political contributions, the Court ruled, violated freedom of speech guarantees of the First Amendment; our democracy is being turned into an oligarchy by an activist Supreme Court, actions benefiting the wealthiest classes.
Are there any clear cut standards to guide the concept of stare decisis? A legal scholar writes,
… courts should defer to the views of elected officials when deciding whether a prior decision has generated significant reliance or rests on outdated facts, but only where those views are based on the superior fact-finding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer.
In the fall of 2020 COVID was spreading across nation, a pandemic we had not seen since the Flu Epidemic of 1919 and we knew that COVID was extremely contagious. Governor Cuomo, under emergency powers approved by the state legislature, placed in-person limits on attendance at public gatherings, including churches and synagogues. The action of the governor was challenged and under the “irreparable harm” doctrine, the Supreme Court intervened immediately, in an unsigned decision (probably Justice Barrett) the Court wrote,
… it has not been shown that granting the applications [overturning the governor’s restrictions] will harm the public. As noted, the State has not claimed that attendance at the applicants’ services has resulted in the spread of the disease. And the State has not shown that public health would be imperiled if less restrictive measures were imposed. Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty. Before allowing this to occur, we have a duty to conduct a serious examination of the need for such a drastic measure.
Justice Sotomayor, joined by Breyer and Kagan, dissents.
Unlike religious services, which “have every one of th[ose] risk factors,” bike repair shops and liquor stores generally do not feature customers gathering inside to sing and speak together for an hour or more at a time. (“Epidemiologists and physicians generally agree that religious services are among the riskiest activities”). Justices of this Court play a deadly game in second guessing the expert judgment of health officials about the environments in which a contagious virus, now infecting a million Americans each week, spreads most easily.
In the Jacobson v Massachusetts (1905), a precedent quoted more than sixty times, the Court ruled that the City of Cambridge could require a small pox vaccination during an outbreak, the penalty was a fine, a decision the majority of the current Court choose to ignore. (Read “The Supreme Court is a COVID Super Spreader,” blog here) “Rescuing” the freedom of religion was more important than saving lives.
A year later the Delta Variant is claiming victims, yes, there is a vaccine; however, too many Americans are choosing not to be vaccinated and a group of students at Indiana University, once again using the “irreparable harm” claim, raced to the federal courts.
The 7th Circuit of the Court of Appeals wasted no time, they didn’t close the door, the Court slammed the door. (Read full decision here)
The First Amendment means that a state cannot tell anyone what to read or write, but state university may demand that students read things they prefer not to read or write things the prefer not to write. A student must read what a professor assigns even if the student deems the books heretical, and must write exams or essays as required … A student told to analyze the role of nihilism in Dostoevsky’s The Possessed but who submits the essay about Iago’s motivations in Othello will flunk.
If conditions of higher education [ requires] following instructions about what to read and write, it hard to see a greater problem with medical conditions that help all students remain safe when learning. A university will have trouble operating when each student fears that everyone else may be spreading disease.
People who do not want to be vaccinated can go elsewhere.
The litigants raced to the Supreme Court, this time, a year later, Justice Barrett, without comment, rejected the appeal.(Read Scotus Blog discussion here)
Perhaps they were embarrassed, perhaps they fear a public backlash, the current Court stands at a precipice, in the upcoming session a number of toxic cases are on the agenda: challenges to Roe v Wade, NY’s restrictive gun control law among them, see docket here
The Court hears oral argument beginning the first Monday in October.