Sunday Discussion Group

July 17, 2005

In the wake of Sandra Day O’Connor’s retirement announcement, and the political world gearing up for its first confirmation process in 11 years, the Supreme Court, its balance, and its ability to shape national policy is once again on the minds of many. With this in mind…

This week’s topic: Your favorite Supreme Court ruling in American history.

If we mark the dawn of the modern Court era at 1803 (Marbury v. Madison), that only gives you 202 years of jurisprudence to deal with. If you’re looking for a push, there are a few higher profile cases here and here.

Lawrence – definitely. The government has no place in the bedroom.

  • Briefly, Griswold v. Connecticut, only because it helped set the stage for Roe and, later on, Lawrence v. Texas (that’s the case that legalized sodomy, and overturned Bowers v. Hardwick.

  • Lawrence and Griswold are right up there, but can anyone top Brown v Board of Education?

  • Dred Scot is my fav — not for its excellence, but for its sheer, total horrible awfulness. Eight of the nine justices published opinions, but Chief Justice Taney’s opinion stood, in public opinion and history if not legally, as the judgement of the court. Taney, in a tone which would easily match the derisive sarcasm of Scalia, did his level best to shut the courthouse door on the aspirations of abolishnist lawyers, who had hoped to gradually establish legal and constitutional principles, which would subject slavery to erosion.

    Taney’s opinion was sweeping and comprehensive. He stripped blacks of their rights as citizens and human beings; he stripped the Congress of its power to make laws for the territories. He managed to find a provision of the Constitution, itself, “unconstitutional.” When he was done, all that was left in doubt was whether a State could effectively bar slaves from travelling or “sojurning” in its own territory — a question, which was pending in the never decided Lemon case, still bogged down in appeals.

    Taney’s opinion would be a significant impetus toward Civil War. Erasing its implications from the law, would require three amendments to Constitution — the 13th, 14th and 15th amendments.

  • Let’s also take a moment to give props to U.S. vs Nixon. Unanimous ruling, forced Nixon to turn over the tapes, and best of all, reminded the nation that even the president is not above the law.

    It seems like a point that bears repeating right now.

  • United States v. Carolene Products, 304 U.S. 144 (1938) — not for the decision itself but for the famous footnote 4 where Justice Stone laid the groundwork for elevating review of legislative enactments which detriment groups without voting power:

    [P]rejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.

    More often cited than followed, it expresses the fundamental, but often overlooked, principle that constitutional review is meant to be anti-democratic and is meant to be a check on the excesses of majority rule.

  • Okay, since no one else has, I’ll have to select the obvious: Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) since, by establishing the judiciary as an equal independent branch of government, it’s really the case which made all the others possible. It was the first case in which the Supreme Court exercised judicial review – the power to annul legislative or executive acts which the court finds unconstitutional.

  • In addition to all the cases mentioned above, I’m particularly fond of a 1943 case called West Virginia State Board of Education v. Barnette. It’s not necessarily a famous case, but it’s one of my all-time favorites. Justice Robert Jackson’s opinion reads like great poetry.

    The case was simple enough. W.Va. had a law requiring children to to salute the American flag — maintainging a “stiff arm” salute, according to state law — and say the Pledge of Allegiance in public schools. Jehovah’s Witnesses are forbidden from doing so based on their religious beliefs, and one parent sued the state. The Supreme Court agreed that the government cannot compel people to participate in patriotic exercises against their will.

    The ruling’s writing is among the best I’ve ever seen. Consider some of these gems:

    * “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”

    * “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.”

    * “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent…. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.”

    * “The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.”

    They just don’t write them like that anymore.

  • Bush v. Gore, 121 S Ct 525 (2000). One of the finests examples of strict constructionism … oh, wait … never mind.

  • The reasoning in the 1943 Pledge case applies equally well
    to school prayers, and other religious rituals, and
    one has to wonder why it took so long to root them
    out. Indeed, we’re still at it. It is especially troubling
    with the Pledge’s “under God” and coinage, currency
    and national motto of “in God we trust,” for these were
    direct violations of the establishment clause, stemming
    from acts of the U.S. Congress.

  • Justice John Harlan Marshall’s dissent in Plessey vs. Ferguson – “But in view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.”

  • Clearly

    Baker v. Carr one man one vote

    Gideon v. Wainwright indigent right to counsel

    Picture America without these two decisions

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