The CourtZero book, Chapter Nine

Here we have Chapter Nine, "What Activist Courts Have Given Us".

For links to previous chapters, start here, and go on from there.

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Here is Chapter Nine:

Chapter Nine

What activist courts have given us

Not all judges are bad judges, and not all courts are destructive to our freedoms and civilization. Judges perform a number of critical functions. They resolve disputes between individual people with real problems that they wish to settle peaceably. They keep the criminal justice system running, and that is certainly needed.

Some courts even once in a while do things that are widely regarded as simply good for everyone. Brown v. Board of Education is the primary example of such a case, in the minds of most people. That decision outlawed the segregation of public schools. People dispute the validity and constitutionality of that decision, but that is not my point. I mention Brown v. Board because to omit it would leave a glaring hole in this book. I get it: people think the Supreme Court did a good thing when it decided Brown v. Board. Having noted it, I’ll add that the nation was already heading in the right direction, toward desegregation, and it was our Congress and not the courts that gave us (with our knowledge and consent) the Civil Rights Act of 1964.

And it is arguable that it was the courts that made Brown v. Board necessary in the first place (we will discuss how in the next case study). In other words, as much as people love to point to Brown v. Board as a shining moment for “good” judicial activism, it is nothing more than the court attempting to stumble through tortured reasoning to clean up one of its own mistakes.

Plessy

That mistake is called Plessy v. Ferguson, given to us by the Supreme Court justices in 1896. After the Civil War and the passage of the 14^th Amendment, which requires “equal protection under the law”, Homer Plessy, who was one-eighth black, was arrested for refusing to leave a railroad car that was reserved only for white people. The Court decided that this treatment was not unconstitutional, despite the post-war amendments, and declared that the doctrine they made up, “separate but equal”, was the law of the land. Our elected representatives, even in that time of relative bigotry, didn’t come up with “separate but equal”. Judges came up with that.

Some might be sympathetic to the court because of the climate of the times, but that sympathy would ignore the fact that the post-war amendments specifically addressed how the law was to treat racial differences. The Plessy court simply ignored the Constitution, saying that “a statute which implies merely a legal distinction between the white and colored races…has no tendency to destroy the legal equality of the two races.” That is not profound reasoning in the face of the 14^th Amendment. The 14^th says, in section one:

“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.”

That last bit is important. Equal protection of the laws, it says, not separate but equal protection of the laws. The intent of the people when they amended the Constitution is pretty clear to the average reader, isn’t it? To you and me, maybe, but it certainly wasn’t clear to the United States Supreme Court.

The Court’s separate but equal doctrine gave legitimacy to every bigoted attitude held by unjust public officials. It gave legitimacy to Jim Crow laws, and allowed segregation to expand into every possible setting until it was set in concrete. We don’t have a crystal ball, though. We cannot tell if the Jim Crow laws would have died in time of their own obsolescence, but we do know for sure that the Court guaranteed that bigots could find legitimacy from the highest court in the land until our elected representatives began to fix the problem.

The dissenting opinion noted that the law should be color-blind. What pain might the nation had avoided if the law truly had been color-blind as early as 1896? Would affirmative action even be necessary today if the Plessy Court had not been an activist, anti-constitutional court?

Dred Scott

In the Civil War, over 600,000 Americans died in uniform. Sure, we can’t know for sure whether or not Congress and the states would have resolved their differences and abolished slavery without a civil war, but the Supreme Court in 1857 guaranteed that war when it decided Dred Scott, taking the issue away from the voters and the states.

Mr. Scott was a slave. He moved (or rather, his owner moved with him) to Illinois, a free state. After that they moved to Missouri, a slave state. Missouri’s law, however, declared that once a man was free, he was always free. Mr. Scott sued to be once again free, as he had been under the law in Illinois. His courage is astounding, especially when one remembers that he had complained in his lawsuit of being physically beaten, and in the end he lost and was returned to the hands of the abuser.

The Supreme Court was not content just to decide against Mr. Dred Scott and to uphold his slavery and that of his wife. It wasn’t enough to condemn that man and his wife to the most frightening resolution of a lawsuit that I can think of, nor could the Court stop itself at deciding that the Illinois law should not be honored.

Instead, the Supreme Court went on to declare that the requirement for most new western states to be admitted to the Union as free states, under the compromise reached by the nation’s elected representatives, was unconstitutional. This was an incorrect and activist view of the Constitution, and made it impossible for any solution to the slavery problem to be found other than a war that killed two percent of the country’s population.

In 1857, the United States Supreme Court had only once before declared a law to be unconstitutional. The Constitution had been around for quite a while when this court went out of its way to make new states into slave states despite the will of the people. Judicial activism in American courts has tended toward the immoral and destructive from the beginning. And as in both the case above and in the case below, judicial activism has been at the expense of the most vulnerable and powerless among us.

Roe v. Wade

Roe v. Wade hardly needs an introduction. Everyone knows that it means that abortion-on-demand is legal in the United States. Every American, whether pro-choice or pro-life, should take the time to read the opinion.

The Court used the 14^th Amendment (which was designed to protect African-Americans from unfair laws and which had been disregarded in the Plessy case) to say that a woman has a right to terminate the life of her unborn child. We know that Roe v. Wade is a lightning rod, and that people hold passionate and genuine points-of-view on both sides of the issue.

That does not mean that Roe is a good court decision. First, the justices do not do a poor job of explaining how it found a new right in the Constitution that doesn’t actually appear in the text. Second, although the decision does say that its reasoning would be out the window, if you will, when an unborn child reached viability, it does not tell us how the law should treat viable fetuses or how courts should deal with advances in medical technology making fetuses viable earlier and earlier in pregnancy.

Third, and most important, the court simply did not consider whether or not the unborn had any rights. Given that this decision was such a landmark case, and such a departure from law up until that point, one would think that they would have taken the time to give us good reasoning for the notion that an unborn child is not a person, therefore possesses no rights. The Court didn’t bother with an explanation for that at all, but instead began with the conclusion and worked backward. In their reasoning, the existence of the developing human to be aborted was not even considered.

We still don’t have a crystal ball. We cannot tell what states might have laws allowing or prohibiting abortion today if not for Roe v. Wade. We do know that those who are passionate about the protection of the unborn have been bound and gagged, both legally and socially, by Roe. We do know that the court forced a radical social change upon the nation before it was ready for it. If you have an opinion, on either side, about abortion, parental notification, partial-birth abortion, or “choose life” license plates, I have a message for you: Shut up. The courts have ruled, and we have no say in this debate, so you might as well lay down your signs and forget your chants and go home. Keep government out of our bodies, you say? Well, the Supreme Court is the government. It has its hands on your reproductive rights. It decides. And it has its hands around the throat of the unborn. If it helps, one can say to the unborn, “hey, we know you don’t have any say in this medical procedure, but neither do the rest of us…”