Lecture 2: Five Major Supreme Court Cases that Affected American Culture

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Andra McKinney
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1 I. Introduction Lecture 2: Five Major Supreme Court Cases that Affected American Culture In this short reading, we consider five Constitutional cases heard and decided by the Supreme Court of the US that have had tremendous influence on subsequent US culture, politics, and society. Although most of these cases were heard in the distant past, they nevertheless established important long-lasting precedents for the Court and served to expand the power of the legislative branch relative to that of the executive and legislative branches of the federal government. These five cases were as follows: (1) Marbury v. Madison (1803) introduced judicial review (2) Wickard v. Filburn (1942) expanded control of interstate commerce (3) Brown v. Board of Education (1954) overturned separate but equal (4) Roe v. Wade (1973) legalized abortion (5) Obergefell v. Hodges (2015) legalized same-sex marriage The clear trend established in these cases has been towards expanding the power of the Court to decide fundamental societal changes and reducing the role of Congress in firmly establishing laws that govern cultural norms. The supreme court is currently composed of nine justices, nominated by the president and confirmed by the senate to lifetime appointments. In many cases, the vote is 5-4 meaning that a single person (swing vote) is deciding fundamental law for the 310 million Americans to live by, while elected leaders have little choice in the matter. This seems like an appalling way to run a democracy since the opportunity for abuse by the Court is enormous. Some reforms have been proposed recently, but they have yet to win widespread support. In effect, the current system allows justices to legislate from the bench, meaning that in many important cases the unelected supreme court can decide what will be appropriate laws for Americans to live by regardless of what the peoples elected representatives think. As the Court expands its scope and authority over matters belonging to the writing of law, people have become polarized about issues rather than seeing this as a systematic flaw in the US Constitutional process. From the Court s point of view, the legislature does what the majority tells it, while the Court protects the minority from the tyranny of the majority. The President is left with executing what the Congress and the Supreme Court want, subject to the executive branch s veto power. This system of checks and balances was what the framers had in mind in designing and constructing the federal government. But there is nothing to prevent these balances from becoming unbalanced. What is to be done when that happens?

2 II. Short Descriptions of the Five Cases In what follows we will look briefly at each case and try to state its importance to American society. We will not try to fully discuss these cases and their precedents in the Constitution since that is beyond the scope of our course. (1) Marbury v. Madison (1803) This case established the principle of judicial review, where a law passed by Congress could be struck down as unconstitutional, if the supreme court decided so. No other branch of government has such power, although Congress can always repeal a law once it is passed, provided it has sufficient support. The background of the case was this. John Adams lost a presidential election to Thomas Jefferson in It was a bitter election between two old friends. Before leaving office, outgoing President Adams decided to grant many appointments to the judicial branch of the government since it was the only way to preserve some power for his Federalist party. One of the appointments was to a man named Marbury who was to be made a justice of the peace. However, the appointment papers were delayed and not delivered, and the new Secretary of State, James Madison, refused to deliver them, on orders from the incoming President Jefferson. Marbury brought the case directly to the Supreme Court, headed by an Adams appointee, Chief Justice John Marshall. The case was finally decided with the court ruling that Marbury inappropriately brought the case to the Supreme Court because the provisions allowing the suit contained in the Judiciary Law of 1789 were unconstitutional. The importance of the ruling was this. Even though Congress had passed a law (i.e. the Judiciary Law of 1789), parts of it were struck down as unconstitutional (i.e. those used by Marbury to justify his lawsuit against James Madison to the Supreme Court) and therefore the Supreme Court could invalidate a law passed by the duly elected representatives of the people, even though the Court was not elected. We now refer to this as judicial review, and it gave the SCOTUS the extraordinary power to overturn a law passed by Congress if it judged the law unconstitutional. (2) Wikard v. Filburn (1942) This case greatly expanded the scope of the Commerce Clause of the Constitution (i.e. Article 1, Section 8, Clause 3), which gave the Congress power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes. The key concept of the Commerce Clause is that regulation of the affairs of states (including economic activity) must somehow involve interstate activity. That is, an activity exclusively inside a state could not be regulated by Congress, unless it somehow tangibly impacted other states. The background of the case was this. An Ohio farmer, Roscoe Filburn, was growing wheat for use to feed animals on his own farm. The U.S. government had established limits on wheat production based on acreage owned by a farmer, in order to stabilize wheat prices

3 and supplies. In 1941 Mr. Filburn grew more than the limits permitted and he was ordered to pay a penalty. He claimed his wheat was not sold in interstate commerce and so the penalty could not apply to him. The Supreme Court stated even if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as direct or indirect. The importance of the ruling was this. Congress could now impose its regulations at the very lowest levels of economic activity in a state, and this would be judged constitutional. All that was needed was to show that the activity impacted other states in some substantial manner. Clearly, this term substantial would become a matter of contention, but the judgment was crucial in allowing the Federal government to pass far reaching regulations on the economy that were previously felt to be a matter of the states and not the central government. This decision would have enormous consequences for business in terms of health, safety, environmental, labor standards, and other types of regulations. It can only be interpreted as a greater centralization of power in the US. (3) Brown v. Board of Education (1954) There have been three very important and famous Supreme Court rulings involving race relations in the US. The first case was Dred Scott (i.e. Dred Scott v. Sanford (1857)) in which an enslaved African man unsuccessfully sued for his freedom (along with his wife and two daughters) in the courts. We will not discuss this case here, but it should be understood that the ruling against Dred Scott by the SCOTUS was a contributing factor to the eruption of civil war in The second case was Plessy v. Ferguson (1896), which was a landmark United States Supreme Court decision upholding the constitutionality of state laws requiring racial segregation in public facilities under the doctrine of "separate but equal. "Separate but equal" remained standard doctrine in U.S. law until its repudiation in the third case, the 1954 Supreme Court decision Brown v. Board of Education. This is the case we want to briefly discuss. Brown v. Board of Education of Topeka (1954), was a landmark United States Supreme Court case in which the Court declared state laws establishing separate public schools for black and white students to be unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896, which allowed state-sponsored segregation, insofar as it applied to public education. Handed down on May 17, 1954, the Warren Court's unanimous (9 0) decision stated that "separate educational facilities are inherently unequal." As a result, de jure racial segregation was ruled a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. This ruling paved the way for integration and was a major victory of the Civil Rights Movement.

4 The background of the case was this. In 1951, a class action suit was filed against the Board of Education of the City of Topeka, Kansas in the United States District Court for the District of Kansas. The plaintiffs were thirteen Topeka parents on behalf of their 20 children. The suit called for the school district to reverse its policy of racial segregation. The plaintiff, Oliver L. Brown, was a parent, a welder in the shops of the Santa Fe Railroad, an assistant pastor at his local church, and an African American. He was convinced to join the lawsuit by Scott, a childhood friend. Brown's daughter Linda, a third grader, had to walk six blocks to her school bus stop to ride to Monroe Elementary, her segregated black school one mile (1.6 km) away, while Sumner Elementary, a white school, was seven blocks from her house. The Supreme Court heard the case and ruled in 1954 in favor of Brown. Chief Justice Earl Warren convened a meeting of the justices, and presented to them the simple argument that the only reason to sustain segregation was an honest belief in the inferiority of Negroes. Warren further submitted that the Court must overrule Plessy to maintain its legitimacy as an institution of liberty, and it must do so unanimously to avoid massive Southern resistance. He began to build a unanimous opinion. Although most justices were immediately convinced, Warren spent some time after this famous speech convincing everyone to sign onto the opinion. Justices Jackson and Reed finally decided to drop their dissent. The final decision was unanimous. The importance of the ruling was this. In some sense, Brown v. Board of Education was a repudiation of the principle of separate but equal status or segregation a principle that was very similar to what became known in South Africa as apartheid. By 1954, America was ready to legally accord blacks the same rights, conveniences, and facilities that whites enjoyed, although the practical application of eliminating all forms of segregation and discrimination was to become a massive social movement during the 1950s and especially the 1960s. Brown v. Board of Education pointed the way forward to a fairer and just America. (4) Roe v. Wade (1973) Perhaps no other ruling by the Supreme Court has caused such division, controversy, and deep-seated hatred as Roe v. Wade, a ruling that effectively legalized abortion throughout the US. Many Americans consider abortion to be murder and not simply a personal reproductive choice. Still many others feel that to deny women the right to an abortion is to refuse them the choice over how their body is to be used and when they will reproduce. On the one side, people argue that an unborn baby is still a person and thus protected by the Constitution. On the other side, people have argued that an unborn baby is not a person and should not be accorded the full rights of the Constitution. It is clear that science cannot provide an objective answer to this question. The question has always been a constitutional

5 issue and could not be treated as a simple legal matter to be determined on a case by case basis. The background of the case was this. In June 1969, Norma L. McCorvey discovered she was pregnant with her third child. She returned to Dallas, Texas, where friends advised her to assert falsely that she had been raped in order to obtain a legal abortion (with the understanding that Texas law allowed abortion in cases of rape and incest). However, this scheme failed because there was no police report documenting the alleged rape. She attempted to obtain an illegal abortion, but found that the unauthorized facility had been closed down by the police. Eventually, she was referred to attorneys Linda Coffee and Sarah Weddington. (McCorvey would give birth before the case was decided.) These lawyers took the case to trial. On June 17, 1970, a three-judge panel of the District unanimously declared the Texas law unconstitutional, finding that it violated the right to privacy found in the Ninth Amendment. Roe v. Wade reached the Supreme Court on appeal in The justices delayed taking action on Roe until other closely related cases could be heard. However, before the case was heard, two of the justices retired, leaving only seven justices. After a first round of arguments, all seven justices tentatively agreed that the Texas law should be struck down, but on varying grounds. Justice Blackmun wrote the opinion of the majority, but he felt that his opinion did not adequately reflect his liberal colleagues' views. In May 1972, he proposed that the case be reargued. The two vacancies left by retiring justices were filled by newly confirmed Justices William Rehnquist and Lewis F. Powell, Jr. After the Court heard the second round of arguments, Powell said he would agree with Blackmun's conclusion but pushed for Roe to be the lead of the two abortion cases being considered. Powell also suggested that the Court strike down the Texas law on privacy grounds. Justice Byron White was unwilling to sign on to Blackmun's opinion, and Rehnquist had already decided to dissent. The Court issued its decision on January 22, 1973, with a 7-to-2 majority vote in favor of Roe. Justices Burger, Douglas, and Stewart filed concurring opinions, and Justice White filed a dissenting opinion in which Justice Rehnquist joined. The Court deemed abortion a fundamental right under the United States Constitution, thereby subjecting all laws attempting to restrict it to the standard of strict scrutiny The importance of the ruling was this. Roe v. Wade was perhaps the most momentous decision ever taken by the Court. Whatever one feels about the private and personal right to decide one s reproductive behavior, the legalized killing of literally millions of healthy and normal unborn humans makes all other decisions by the SCOTUS pale in comparison. It has remained a divisive part of American life requiring each American to take a stand, one way or the other, on the issue. These two camps have become known as the Right to Life (anti-abortionists) and Right to Choose

6 (pro-abortionists). In this sense, 1973 has become something of a dividing point in the US between those who favor Life and those who favor Choice. An interesting aside to this arose in 2001 when economist Steven Levitt and John Donohue claimed in an academically peer-reviewed paper that one reason why that US crime rates had fallen in the 1990s was that millions of criminals from poor families had been essentially exterminated by the implementation of Roe v. Wade and through legalized, open, and cheap abortion. See Of course, their paper has been very controversial with supporters of Roe v. Wade who dislike the negative sociological implications of his findings. (5) Obergefell v. Hodges (2015) The most recent case before the Supreme Court that has impacted the entire country has been the one on same sex marriage. Fundamentalist Christians in the US have seen this as an affront to their religious teachings, but still other Christians do not think that religion has anything to do with sexual preferences. For them this is a matter of private personal choice that should remain preeminent in deciding whether government recognizes these unions formally. The Congress had avoided this issue by passing a law known as DOMA (Defense of Marriage Act) that denied federal government recognition of same sex marriage. All presidents up to Obama had respected this law, but Obama claimed he would not enforce it. The DOMA law was then ruled unconstitutional in 2013, again by a 5-4 decision the swing vote being Justice Kennedy. This ruling made it much more favorable to challenge the constitutionality of states that refused to recognize and sanction homosexual marriage. The background of the case was this. Claimants from each of the six district court cases who appealed to the Supreme Court of the United States. The Obergefell petitioners asked the Court to consider whether Ohio's refusal to recognize marriages from other jurisdictions violated the Fourteenth Amendment's guarantees of due process and equal protection, and whether the state's refusal to recognize the adoption judgment of another state violated the U.S. Constitution's Full Faith and Credit Clause. The petitioners asked the SCOTUS to issue a writ of certiorari, which would force the lower courts to explain their decision to disallow same sex marriages. That is, when individuals who wished to marry were refused, they would seek a remedy by the court forcing the state government to recognize their marriage. The courts refused and therefore these people petitioned the SCOTUS to hear their case by reviewing the findings of the lower court to see if their constitutional rights were being observed.

7 On January 16, 2015, the U.S. Supreme Court consolidated the four same-sex marriage cases challenging state laws that prohibited same-sex marriage and agreed to review the case. The Court ordered briefing and oral argument on the following questions: 1. Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2. Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-ofstate? The case gained much national attention and had 148 amici curiae briefs submitted, more than any other U.S. Supreme Court case. On June 26, 2015, the U.S. Supreme Court held in a 5 4 decision that the Fourteenth Amendment requires all states to grant same-sex marriages and recognize same-sex marriages granted in other states. Justice Kennedy was the deciding vote. The importance of the ruling was this. The Court listed four distinct reasons why the fundamental right to marry applies to samesex couples. First, "the right to personal choice regarding marriage is inherent in the concept of individual autonomy." Second, "the right to marry is fundamental because it supports a two-person union unlike any other in its importance to the committed individuals," a principle applying equally to same-sex couples. Third, the fundamental right to marry "safeguards children and families and thus draws meaning from related rights of childrearing, procreation, and education"; as same-sex couples have children and families, they are deserving of this safeguard though the right to marry in the United States has never been conditioned on procreation. Fourth, and lastly, "marriage is a keystone of our social order," and "[t]here is no difference between same- and opposite-sex couples with respect to this principle"; consequently, preventing same-sex couples from marrying puts them at odds with society, denies them countless benefits of marriage, and introduces instability into their relationships for no justifiable reason The Court noted the relationship between the liberty of the Due Process Clause and the equality of the Equal Protection Clause and determined that same-sex marriage bans violated the latter. The dissenters to the decision claimed the Court was expanding its personal views of the case rather than arguing from originalist interpreted laws. They felt this was judicial activism.

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