It began when I stumbled on Landmark Cases last month, a C-Span series about 12 Supreme Court cases chosen because they had a dramatic impact on the legal landscape in United States history, and because they likewise had a significant impact on the Court itself, as precedent and on its perceived legitimacy, for good or ill. It can be found as a video series online, but I’ve been listening to the podcast version.
As I was listening, the discussions reminded me of a book I had heard about a little while ago but had forgotten to read, a book about the Supreme Court’s worst failures, terrible decisions that undermined its legitimacy and had a negative impact on the lives of people for years to come. It’s called Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted, by Ian Millhiser. So, I went and picked it up, and just as with the Landmark Cases Series, I’ve been finding it difficult to tear myself away.
Both the Landmark Cases series and Injustices reveal that though sometimes the Supreme Court has been the bulwark against congressional, state, and individual encroachments of freedom, it has also too often betrayed the public trust. While we remember and celebrate such cases as Brown vs. Board of Education, Griswold v. Connecticut, and Obergefell v. Hodges, which brought the blessings of liberty to more of the American people than ever before, we sometimes forget how extensive the history of freedom-crushing Supreme Court decisions really is. The Dred Scott case, Lochner vs. New York, Korematsu vs. United States, and Citizens United v. FEC, for example, allowed employers to exploit desperate workers by cornering the market, fixing wages, and creating terrible working conditions with health-destroying long hours; permitted the government to imprison innocent citizens and allow the looting of their property based on no other consideration than race; and enabled the wealthy few to effectively buy up elections. Millhiser’s view of the Supreme Court’s historical tendency to value states and property rights over civil rights and the public interest is summarized here: ‘If American government truly derives its legitimacy from the consent of the governed, then [the] agenda [of the hardline conservatives] that is so often and so soundly rejected at the polls must not be implemented by one unelected branch of government when there is no constitutional basis to do so.’ (pp 184-85).
The Supreme Court’s conservative justices, joined at times by their otherwise more liberal-minded colleagues, all too often decided their cases according to the view that the Constitution only prescribes and limits federal action, and was not intended to do likewise with state or individual action. But as many other Supreme Court justices observed, especially in its civil rights phase throughout the latter half of the twentieth century, this reading of the Constitution renders it impotent (FDR’s terminology in his second inaugural address) to extend the protections of the Bill of Rights to citizens in almost all arenas of life.
After all, most of one’s life is not spent interacting directly with the federal government or its institutions, but in homes, shops, public squares, workplaces, and so on. If the state, or an employer, or a county sheriff, or a bus driver, or a neighbor, or any other non-federal institution or person uses their liberty to oppress another individual, then the latter can’t actually enjoy the freedoms that the Bill of Rights guarantees*. And surely the founders of our nation didn’t intend the Bill of Rights, demanded as a condition of the Constitution’s passage, to be powerless to protect individual freedoms in most circumstances. This is the principle which drives the more liberal Supreme Court Justices, Millhiser, and commentators on the Landmark Cases series to agree that strict constructionist, hyper-conservative, elitist, and commerce-centric justices have historically imposed opinions on the public that do not serve their interests as idealized in the Bill of Rights, and allowed the the powerful and wealthy few to claim the right to do as they like while trampling the liberties of everyone else. Since the Constitution derives its legitimacy from ‘we the people’, then we the people, in our institutions and as individuals, should be likewise bound by the Bill of Rights.
At times, I think that Milhiser champions too strongly the general principle that unelected judges should get out of the way and allow elected representatives to legislate as their constituents demand. After all, as so many of Milhiser’s examples indicate, legislators historically have been all too happy, too often, to make laws that favor some while trampling the rights of others. The potential value of an unelected judiciary to balance the power of an elected legislature is, I think, revealed more clearly in the Landmark Cases discussions. After all, the will of the majority often runs contrary to the national project laid out in the Preamble of the Constitution and the Bill of Rights, to protect and promote the rights of everyone, especially those in the minority who need protection the most. However, as author Jeffrey Toobin points out in his endorsement of the book, Millhiser’s book does an excellent job of balancing the good history of good Supreme Court jurisprudence with the bad.
*For more on the distinction between liberty and freedom, please see my essay Freedom, Liberty, and the Inevitable Interconnectedness of Human Life
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Sources and inspiration:
Landmark Cases: A C-Span Original TV Series, 2015
Millhider, Ian. Injustices: The Supreme Court’s History of Comforting the Comfortable and Afflicting the Afflicted. New York: Nation Books, 2015.
“One Third of a Nation”: FDR’s Second Inaugural Address, published at History Matters website. http://historymatters.gmu.edu/d/5105/