Itwasaneye-openingexperience. In my last year of college I took two courses on Constitutional Law (Con Law I & II) and discovered that most of what I had heard about the Supreme Court was not true. The least democratic of the three branches of government was in fact the most likely to protect individual rights. We weren’t assigned textbooks. We read Supreme Court decisions directly from the casebooks, such as Marbury v. Madison, Dred Scott v. Sandford, Plessy v. Ferguson, and Brown v. Board of Education. We read both majority and minority Court opinions, both of which could be equally persuasive. Indeed, the minority opinions of the Dred Scott decision and Plessy v. Ferguson (to cite two famous examples) would become majority opinions when these decisions were overturned decades later. Reading the cases was sometimes tedious but always fascinating, especially in how the justices read the Constitution and applied it to their decisions. The Constitution is not a static set of laws but a living document, intended by the framers to be flexible to meet the needs of a changing society.
I was reminded of this recently while reading “A History of the Supreme Court” by Bernard Schwartz. It’s about how the Supreme Court has interpreted the Constitution from the time of its inception down to the book’s publication, in 1993. The book covers much of the same material as my Con Law classes. The author begins by saying the great theme of our nation’s development is the idea of law as a check upon government power. The Constitution is not a prohibition against what the people might do, but a prohibition against what the government might do. For example, the First Amendment right of free speech: “Congress shall make no law . . . abridging the freedom of speech.” What exactly does that mean? Can you go around advocating the overthrow of the government? In fact, the Court has ruled you can, unless your words present “a clear and present danger,” such as in the time of a national emergency. The Court also has said that free speech does not include “falsely shouting fire in a crowded theater.” In other words, you can go around saying whatever you want, as long as it doesn’t harm or endanger others.
The Supreme Court was hardly supreme in the beginning. It wasn’t until John Marshall was appointed Chief Justice in 1801 that the High Court became the equal of the executive and legislative branches of government. Marshall did this with a judicial slight-of-hand in the decision of Marbury v. Madison (1803) by establishing the precedent of judicial review. Marshall ruled against Marbury in declaring the Court had no power to issue the writ of mandamus he was seeking, because the congressional act conferring the Court with such power was in fact unconstitutional. On the surface it appeared to be a victory for President Thomas Jefferson who was set upon blocking Marbury’s appointment to the bench of a lower court. In fact, it was a victory for the Supreme Court because it confirmed judicial review as the core principle of our constitutional system. In simple terms, judicial review means the Supreme Court has the power to say what the Constitution means, and void such laws that conflict with the Constitution. In a case involving the executive branch—United States v. Nixon—the Court rejected President Richard Nixon's claim to an "absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances” and therefore must turn over the White House secret tapes to the special prosecutor. It was a landmark ruling because it upheld governmental checks and balances that is essential to preventing abuses of power.
During his 35 years on the bench, Marshall’s rulings cemented the power of federal over state governments and the sanctity of private property. Marshall’s successor, Chief Justice Roger Taney (1835-1864), wrote decisions that furthered Marshall’s view of property rights but with a twist—where the rights of property conflict with those of the community, the rights of the community must take precedent. It was in keeping with the Jacksonians who had appointed him to the bench.
Taney was a brilliant Chief Justice whose reputation was shattered by a single decision—Dred Scott v. Sandford (1857). Taney meant well. A Southerner, he had freed his slaves prior to his appointment to the Court. The nation was badly divided over the slavery issue. Violent conflicts between abolitionists and advocates of slavery were common in the western territories. The Kansas-Nebraska act of 1854 had done nothing to resolve the issue. With the Dred Scott decision, Taney hoped a ruling by the High Court would settle the issue once and for all. Taney’s majority opinion held that slaves were not citizens and had “no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.” It was not only a mean-spirited ruling but politically motivated. And it failed to do what Taney had hoped it would. The author writes, “seldom has wishful thinking been so spectacularly wrong.” Within four years of the Court’s ruling the nation was embroiled in a bloody Civil War.
After the Civil War and until the New Deal, rulings from the Supreme Court favored American’s burgeoning corporations while ignoring individual rights. One of the most damning decisions was Plessy v. Ferguson (1896) in which the court validated the South’s Jim Crow laws in confirming “separate but equal” schools as Constitutional. Another decision, Lochner v. New York (1905), typified the era in upholding an employer’s rights to work employees for as many hours as he deemed necessary. Writing brilliant dissenting opinions, four justices emerged during the Court’s laissez-faire era: Stephen J. Field (1863-1897), John Marshall Harlan (1877-1911), Oliver Wendell Holmes (1902-1932), and Louis D. Brandeis (1916-1939). After Word War II, the dissenting opinions of these four justices would become the Court’s majority opinion in a number of landmark cases buttressing individual rights.
The Court’s decision in Brown v. Board of Education (1954) reversed decades of blatant discrimination in ruling “separate but equal” as inherently unequal, thus putting an end to Jim Crow in the South. Among other ground-breaking decisions were three involving criminal procedure. In Mapp v. Ohio (1961), the court adopted the exclusionary rule, which bars the admission of illegally seized evidence in state criminal cases. In Gideon v. Wainwright (1963), the court ruled that if a defendant cannot afford counsel, one would be appointed for him. In Miranda v. Arizona (1966), the court ruled that a person under arrest has the right to remain silent, to be advised that anything he says may be used against him, and that he can have a lawyer present while being questioned by police. The latter has become known as the Miranda Rule. These were among the decisions of the Warren Court, a decidedly activist court led by Supreme Court justice Earl Warren (1953-1969) and two “radicals,” justice Hugo Black (1937-1971) and justice William O. Douglas (1939-1975). Some felt the Warren Court had overstepped its Constitutional bounds with decisions that bordered on legislating laws rather than adjudicating law. Perhaps. But their decisions were in keeping with upholding the Bill of Rights, which after World War II became the primary concern of the Supreme Court.
After John Marshall, perhaps the most influential person to have been seated on the High Court was Justice Oliver Wendell, appointed by President Theodore Roosevelt in 1902. Holmes served with distinction for 30 years and wrote opinions that continue to influence Supreme Court decisions. He was very clear on the First Amendment right of free speech. History had taught him that “the free play of the human mind was an indispensable prerequisite” of social development. More than that, the Bill of Rights itself, as Holmes recognized, specifically enshrines freedom of speech as its core principle. “If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought,” he asserted in a 1928 dissent. Freedom of speech, he said, was basic to any notion of liberty.
Like John Milton and John Stuart Mill, Holmes stressed the ability of truth to win out in the intellectual marketplace. For this to happen, the government must allow a free exchange of ideas. In the crucial passage of his dissent in Abrams v. United States (1928), he tells us that those who govern too often seek to “express (their) wishes in law and sweep away all opposition,” including “opposition by speech.” They forgot that time may also upset their “fighting faiths” and that government itself is an experimental process. The Constitution also “is an experiment,” he said, “as all life is an experiment.” To make the experiment successful, room must be made for new ideas which will challenge the old, for “the ultimate good desired is better reached by free trade in ideas.” And “the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”
For the most part, the three branches of government—the executive, the legislative and the judicial—reflect the thinking of Americans. The government rules at our pleasure, not the other way around. We live in a democracy. Public opinion changes, and the opinion of those who rule changes. The Court’s ruling in the June 2015 decision to make same-sex marriage legal would not have been made ten years ago. Since that time public opinion has changed, and the court has followed.
“The people made the Constitution, and the people can unmake it,” John Marshall wrote in Cohens v. Virginia (1821). “It is the creature of their own will, and lives only by their will.”