The Pursuit of Justice Supreme Court Decisions That Shaped America
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THE PURSUIT OF JUSTICE SUPREME COURT DECISIONS THAT SHAPED AMERICA KERMIT L. HALL & JOHN PATRICK Contents INTRODUCTION: THE SUPREME COURT AS 14. ESTABLISHING EQUALITY IN VOTING AND A MIRROR OF AMERICA............................................ 5 REPRESENTATION.................................................. 120 Baker v. Carr (1962) 1. THE RISE OF JUDICIAL REVIEW............................... 12 Reynolds v. Sims (1964) Marbury v. Madison (1803) 15. FREEDOM OF THE PRESS IN A FREE SOCIETY.......... 126 2. THE NATIONAL BANK AND FEDERALISM.................. 22 New York Times Co. v. Sullivan (1964) McCulloch v. Maryland (1819) 16. FINDING A RIGHT TO PRIVACY...............................134 3. STEAMBOATS, STATES’ RIGHTS AND THE POWERS Griswold v. Connecticut (1965) OF CONGRESS.................................................... 29 Gibbons v. Ogden (1824) 17. THE RIGHT TO REMAIN SILENT............................. 140 Miranda v. Arizona (1966) 4. DENYING AN APPEAL FOR FREEDOM........................ 37 Scott v. Sandford (1857) 18. FREEDOM OF SPEECH IN PUBLIC SCHOOLS..............146 Tinker v. Des Moines Independent 5. CIVIL LIBERTIES AND THE CIVIL WAR..................... 45 Community School District (1969) Ex parte Milligan (1866) 19. STANDARDS FOR INTERPRETING THE 6. SEPARATE BUT NOT EQUAL..................................... 53 ESTABLISHMENT CLAUSE...................................... 152 Plessy v. Ferguson (1896) Lemon v. Kurtzman (1971) 7. THE RIGHTS OF LABOR AND THE RIGHTS 20. ABORTION, PRIVACY, AND VALUES IN CONFLICT.... 159 OF WOMEN........................................................ 60 Roe v. Wade (1973) Lochner v. New York (1905) Muller v. Oregon (1908) 21. PRESIDENTIAL IMMUNITY AND THE WATERGATE CRISIS.............................................. 171 8. THE LATITUDE AND LIMITS OF FREE SPEECH............ 69 United States v. Nixon (1974) Schenck v. United States (1919) Abrams v. United States (1919) 22. AFFIRMATIVE ACTION AND THE BOUNDARIES OF DISCRIMINATION............................................. 180 9. AFFIRMING THE NEW DEAL.................................... 76 West Coast Hotel v. Parrish (1937) West Coast Hotel v. Parrish (1937) 23. THE JUDICIAL PATH TO THE WHITE HOUSE........... 189 10. THE FLAG-SALUTE CASES..................................... 85 Bush v. Gore (2000) Minersville School District v. Gobitis (1940) West Virginia State Board of Education v. EPILOGUE: “WE ARE ALL SLAVES Barnette (1943) OF THE LAW”...................................................... 200 11. INTERNMENT OF JAPANESE AMERICANS DURING APPENDIX: AN ANNOTATED LIST OF IMPORTANT WORLD WAR II.............................................. 93 SUPREME COURT DECISIONS................................ 204 Hirabayashi v. United States (1943) Korematsu v. United States (1944) FURTHER READING.............................................. 222 12. A DECISION TO LIMIT PRESIDENTIAL POWER.......... 101 WEBSITES........................................................... 226 Youngstown Sheet & Tube Co. v. Sawyer (1952) INDEX................................................................. 228 13. PUBLIC SCHOOL DESEGREGATION.......................... 108 Brown v. Board of Education of Topeka, Kansas (1954, 1955) Introduction The Supreme Court as a Mirror of America The Supreme Court of the United States seems a per curiam, or “for the court.” Such an opinion is rendered mysterious, distant institution. Its justices conduct their either by the whole Court or a majority of it, rather than business in an imposing marble building; they don formal being attributed to an individual justice. This practice of black robes to hear oral arguments and issue decisions; issuing per curiam opinions means that the public cannot and they announce those decisions through the technical readily determine how the justices aligned themselves, language of the law. On closer examination, however, this adding to the mystery of the entire decision-making pro- seemingly inscrutable institution of legal oracles turns out cess. Early in the Court’s history such opinions were used to be a uniquely human enterprise shaped by the personali- to dispose of minor cases in a terse, summary fashion; ties of its justices and by the disputes that constantly roil more recently, they have also become vehicles for major American society. Each case that comes before the Court opinions. For example, the Court issued one of its great is a unique slice of American life, not just an abstract legal and controversial twentieth-century First Amendment de- matter, and the outcomes of these cases tell the story of cisions, Brandenburg v. Ohio (1969), per curiam. So, too, the nation and its development. They also chronicle the was Bush v. Gore (2000), in which the justices decided institution’s successful struggle to secure its power to re- who would be the next President of the United States. view the actions of the other branches of government, to The framers of the Constitution intended just such a establish its independence, and to settle conclusively what mix of secrecy and accessibility. They meant the justices the Constitution means. to be judges, not politicians subject to direct public pres- The high court is simultaneously the least and the most sure. The justices serve during good behavior, a virtual accessible branch of government. Unlike the President and grant of life tenure. The President appoints them with the Congress, the Supreme Court invariably explains its ac- advice and consent of the Senate; they can be removed tions through written opinions. Since the Court’s founding only through impeachment by the House of Representa- in 1789 it has delivered enough opinions to fill more than tives and conviction by the Senate for “Treason, Bribery, five hundred fat volumes, known to us today as United or other high Crimes and Misdemeanors.” Only one jus- States Reports. The justices reach those decisions through tice, Samuel Chase, has been impeached, but the vote to a process that involves open argument in court and intense convict him fell short of the needed two-thirds majority. media coverage. In almost every case, one justice speaks The justices are insulated from politics in other ways for the Court publicly, and his or her colleagues may con- as well. They do not have to stand for election. Their sala- cur or dissent with the decision, also publicly. ries cannot be diminished while they are in office. They Still, the Court’s reputation for mystery is well de- alone decide when they will retire from the Court, even served. It reaches its decisions through highly confidential if they are infirm. They are, in the strongest sense of the meetings, called conferences, in which the justices discuss term, agents of the law, whose ultimate responsibility is to the cases before them out of public earshot. Secrecy is so uphold the Constitution without regard to political pres- strict that the justices have adopted rules that preclude sures or the standing of the people whose cases they de- even their clerks from attending these meetings. The new- cide. The words carved above the entrance of the Supreme est court appointee has the task of sending out messages Court building sum up its noblest ambitions: “Equal Jus- and guarding access to the conference. We know about tice under Law.” what transpires in these conference sessions only through The Court is distinctively American and has been the fragmentary notes that a few justices have left behind. since it first opened its doors for business in 1789. Alexis Even the well-known practice of an individual justice de Tocqueville, a French visitor to the United States dur- writing and signing an opinion gives way at times. The ing the early nineteenth century, was astonished by the justices in some instances may decide to issue an opinion new nation’s reliance on courts and judges. In his classic INTRODUCTION 5 book Democracy in America, he wrote, “I am unaware that The framers chose the words in Article 3 carefully. any nation on the globe has hitherto organized a judicial Particularly important was their decision to merge the power in the same manner as the Americans....A more im- concepts of law and equity under one set of courts and posing judicial power was never constituted by a people.” judges, a practice that departed from the English system. In more recent times, Chief Justice Charles Evans Hughes, Law constituted the formal rules adopted by legislatures who served during the Great Depression of the 1930s, ex- and courts; equity, on the other hand, consisted of ideas plained the unique nature of the Court by pointing to the about justice that rested on principles of fairness and that justicies’ power to review acts of the other branches and, were administered in the English system by chancellors. if necessary, overturn them. Only a few other courts in the Colonial Americans were deeply suspicious of equity world have powers in scope and operation similar to that courts because they operated under the control of English of the U.S. Supreme Court; no other court figures so cen- governors and were, therefore, often highly political, and trally in the life of its nation. they were able to defeat rights, especially property rights, The Court was the most novel, yet least debated, in- that were otherwise protected through the law. stitution to emerge from the Constitutional Convention The crucial purpose of Article 3 was to empower, not of 1787. One reason that the delegates gathered in Phila- limit, the courts in general and the Supreme Court