The Supreme Court has been historically viewed as the primary and effectual protector of individual rights in the American government. However, historical hindsight blinds us from viewing the Court as it truly is, the ultimate, slime-ball politician. A slime-ball politician(SBP) is one that determines what the popular public opinion is on an issue, then runs to the front of the line and claims to lead the people where they were already heading. He or she avoids pronouncing a clear stance on any issue until that issue is already hashed out in the public opinion sphere. He or she does not provide any real value to the discussion of public policy, but only wishes to maintain his or her legitimacy as a political leader. There are some instances where the SBP will express a clear opinion, but that opinion is usually in opposition to the relevant question of individual rights. This view is not new for many people when discussing government in the legislative or executive branches, but the judicial is held in high regard because it appears to be above politics. This is only because they defer judgement on key issues until they can judge where the public is going to land. This was true of slavery, the mid-twentieth century civil rights battle, economic rights in the New Deal era, and most recently the LGBT push for equal rights concerning sexuality and marriage.
The Slavery Era
The most famous Supreme Court case concerning slavery is Dred Scott v. Sanford (1857). “Dred Scott was a slave in Missouri. From 1833 to 1843, he resided in Illinois (a free state) and in an area of the Louisiana Territory, where slavery was forbidden by the Missouri Compromise of 1820. After returning to Missouri, Scott sued unsuccessfully in the Missouri courts for his freedom, claiming that his residence in free territory made him a free man. Scott then brought a new suit in federal court. Scott's master maintained that no pure-blooded Negro of African descent and the descendant of slaves could be a citizen in the sense of Article III of the Constitution.” The Supreme Court under Chief Justice Taney decided that Scott lacked standing to sue in federal court as he was not a citizen of the United States of America.
This was hardly shocking as most of the men on the Supreme Court were raised in a world with slavery. They were raised in a world where the evils of slavery were not represented in media or culture. Taney was 70 years-old at the time of the Dred Scott decision. Taney was born in Maryland to a family of slave-owning tobacco farmers in Maryland. It is no wonder why he and the other older justices could not understand the individual rights arguments that are so plain to us today, that the color of skin should have no bearing on the question of standing in a court. Taney’s decision was meant to be the end of the question of slavery in the United States. Public opinion at the time was not clearly on one side or the other of the decision. Most citizens in the North found it distasteful while most citizens in the South(not including blacks) viewed it as a victory for the protection of property(slaves). However, not long after the decision was made, it was impugned by other justices on the Court. Justice Charles Hughes wrote that the Dred Scott decision was a “self-inflicted wound from which the court would not recover for over a decade.” Chief Justice William Rehnquist wrote that “Scott v. Sandford was the result of Taney's effort to protect slaveholders from legislative interference.” Taney and his Supreme Court were SBP’s. They were not questioning the morality of institutionalized slavery based on race. They were blinded by their own biases because of the world in which they had been raised. This is not an indictment of Taney and that Court as evil or immoral. Many of today’s Justices would probably make the same decision if they were reared during the late 18th and early 19th centuries. Rather, it shows that the institution that is the Supreme Court of the United States is not above politics.
The New Deal Era
Nothing shows how wishy-washy the Supreme Court can be as much as its reaction to the Judicial Procedures Reform Bill of 1937. The Bill was proposed by the sitting President, Franklin Roosevelt in response to several Supreme Court decisions invalidating many of Roosevelt’s first-wave, New Deal legislation. The bill, if passed, would allow the President to appoint a new justice to the Supreme Court for every justice over the age of 70. At the time the Supreme Court was divided somewhat evenly along party lines(Democrat and Republican). However, the four conservative justices, often referred to as the Four Horsemen, were able to convince the decidedly “swing” justice, Owen Roberts, to vote with them against FDR’s programs. The measure eventually failed due to fears from legislators about the constitutionality of the proposed law. However, the political damage was done. Justice Owen Roberts began voting in favor of Roosevelt’s legislation. Roberts voted in favor of New Deal legislation in West Coast Hotel Co. v. Parrish (1937) and National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937). Public opinion in favor of New Deal legislation also grew during this period and it while it may not directly infer causation, the correlation is undeniable.
New Deal legislation was significant to individual rights because it drastically changed the economic rights previously upheld by the Supreme Court. In Wickard v. Filburn (1942) the federal government was granted the power to regulate nearly all commerce because of the indirect effect an act of commerce might have on an interstate market. Many Supreme Court decisions supporting New Deal legislation had similar effects on individual economic liberties.
The Civil Rights Era
Dred Scott v. Sanford was the beginning of the Civil Rights Era, but since I’ve already broached that case I will start with Plessy v. Ferguson (1896). The Court upheld a law in Louisiana requiring hotels, restaurants, hospitals, and public places to serve blacks in separate, but seemingly equal, accommodations. In establishing the separate but equal doctrine, the Court said that segregation is recognized as a part of the states’s power to police. In the sole dissent, Justice John Marshall Harlan, a former slaveowner, said the ruling would "stimulate aggressions, more or less brutal, upon the admitted rights of colored citizens." Segregation was a widely popular policy in the United States as late as 1942. “In June 1942, the National Opinion Research Center (NORC) conducted one of the earliest available polls on the subject of race relations. It portrays a public wary of racial integration in many areas of social life, presenting a snapshot of public opinion about segregation before the issue rose to the top of the national political agenda.” If that was the national view in 1942, one can imagine that the American public might be less tolerant of racial integration when the Plessy decision was made in 1896. The trend continues: The Supreme Court supports as much individual liberty as public opinion will tolerate.
In 1954, Brown v. Board of Education (1954) was decided. It is widely seen as the turning point in Civil Rights era judicial decisions. The case was filed in Topeka, KS. “Black children were denied admission to public schools attended by white children under laws requiring or permitting segregation according to the races. The white and black schools approached equality in terms of buildings, curricula, qualifications, and teacher salaries.” Brown overturned Plessy in the realm of public education and sounded the death-knoll for segregation in general.
If we look at public opinion immediately after the Brown decision we see that public opinion seems to correlate with the Supreme Court’s decision here as well. “Just days after the unanimous decision in Brown, Gallup asked a national sample this question: ‘The U.S. Supreme Court has ruled that racial segregation in the public schools is illegal. This means that all children, no matter what their race, must be allowed to go to the same schools. Do you approve or disapprove of this decision?’ Almost 58% of all respondents and 80% of non-Southerners agreed with the decision initially.” In 16 years the approval of racial integration changed and so did the Supreme Court, upholder of individual liberty and rights. Once again the Court seems to have led the public in the direction they were already heading. Sounds like a SBP-Court to me.
The LGBT Era
Until 1958, the Supreme Court had consistently ruled against the party representing a LGBT interest. It wasn’t till One, Inc. v. Olesen (1958) that the Court saw fit to extend Constitutional protections of free speech and association to this group. In this case One, Inc. was attempting to distribute a pro-gay periodical, "ONE: The Homosexual Magazine.” The Los Angeles postmaster declared the magazine to be obscene and refused to process it through the mail. The group sued and the Supreme Court agreed in a close 5-4 decision, though their opinion focused more on their 1st Amendment right to speech than it did any issue of homosexuality.
The next major Supreme Court case to focus on LGBT rights was Bowers v. Hardwick(1986). The Court ruled, 5–4 that consenting adults do not have a right to engage in homosexual acts in private. The Court said that the "right of privacy" under the Due Process Clause does not give homosexuals the right to practice sodomy. The "right to privacy" protects intimate marital and familial relations, but the Court said it does not cover gay sodomy because "no connection between family, marriage, or procreation on the one hand and homosexual activity on the other has been demonstrated.” According to a Gallup pole that asked, “Do you think gay or lesbian relations between consenting adults should or should not be legal?” between 32% to 44% Americans thought it should be illegal when Bowers was decided.
Public Opinion was clearly opposed to homosexual relationships when the Supreme Court decided Bowers and similar to their decisions in the Civil Rights Era, the Court followed public opinion in making its decision, rejecting the individual rights of Hardwick.
The Supreme Court overruled its earlier decision in Bowers with Lawrence v. Texas(2003). “In a 6-3 opinion delivered by Justice Anthony M. Kennedy, the Court held that the Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct violates the Due Process Clause. After explaining what it deemed the doubtful and overstated premises of Bowers, the Court reasoned that the case turned on whether Lawrence and Garner were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause. ‘Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.’”
If we look at the same approval poll concerning homosexual and lesbian relationships from Gallup we see that approval of these relationships was at an all time high of 60%. The Court appears to have jumped at the opportunity to lead the public where it was already headed. While there was definitely a statistical backlash following the decision, poll numbers continued to rise consistently in favor of homosexual relationships after the Lawrence decision.
In 2008, Prop 8 was created in California in response to a California state court ruling in favor of marriage between homosexuals and lesbians. Prop 8 would define marriage as between one man and one woman in California’s constitution making the state court’s decision moot and ineffectual. The measure passed after a high-profile media campaign from both sides. However, The proposition's advocates filed a petition for certiorari with the Supreme Court in July of 2012, asking that the Court review the Proposition. The Supreme Court punted(lack of standing) the case back to the district court that had decided in favor of allowing homosexual marriages, effectually ruling in favor as well.
If we look at a Gallup pole that asks, “Do you think marriages between same-sex couples should or should not be recognized by the law as valid, with the same rights as traditional marriages?,” we see that by 2013 when the Court ruled on Prop 8(and DOMA) public opinion had shifted to a 53%-45% ratio in favor of same-sex marriages. Once again, the Supreme Court has managed to rule following public opinion almost exactly. They have jumped to the head of the public and showed ‘strong leadership’ in support of social civil liberties, while risking very little to do so. Slime-ball Politicians.
Future Individual Rights Legal Battles
What does this trend mean for future legal battles concerning individual rights? Firstly, it’s encouraging. While the does seem to follow public opinion, public opinion has changed gradually in favor of more individual liberties since the America’s founding. Tolerance for classes of people that were previously viewed as lesser classes has increased steadily over time. Since the Court does tend to follow public opinion, that would suggest that the Court will affirm more liberties as time marches forward. However, for those wishing to fight purely legal battles for rights that are currently unpopular(like polygamy and polyamory) their outlook is bleaker. It would seem more effective for advocates of such rights to focus their resources into changing public opinion, rather than winning the court battle.
Citations upon request(I'm too lazy to figure out how to put my footnote citations into this stupid blog formatting deal-thing)
