Al's Opinions

The United States Supreme Court has been a model for other nations in their construction and adoption of national constitutions.  It is clear today that if a nation has a written constitution there must be a body named in that document to enforce the constitution itself.  That is, a constitution requires a constitutional court.  In most of the world, constittional courts are highly respected and care is taken in chosing the justices to retain public confidence in the court.

In our country the creation of a constitutional court came about almost by accident.  The members of the convention of 1787 who drew up the federal constitution did not see enforcing the constitution as a role of the Supreme Court.  Instead, they believed, the enforcer would be the President who would have the power to veto laws passed by Congress if they were unconstitutional.  The requirement that enforcing the constitution should be done by a body not subject to political pressures was demonstrated by the first Chief Justice, John Marshal.  The case which asserted and established the Court's power to enforce the constitution is known as "Marbury vs. Madison."

As Shakespeare wrote, the evil that men do lives after them.  The good is often buried with their bones.  One can say the same about our Supreme Court.  Most of the decisions have been good ones and no one talks about them.  What we remember and talk about have been some of the bad ones.  Here are a few bad ones:

• Dred Scott:  In 1857 the court ruled that a negro slave did not have the right to sue his master in court to obtain his freedon.  You may recall that Dred Scott's master had traveled from a slave state through one or more states in which slavery was illegal, then back to the slave state.  Dred Scott brought suit, claiming that he had been freed by the process of traveling into a "free" state.  The Supreme Court ruled that the owner of a slave had the right to retain ownership regardless of where he might take the slave.  The northern "free" states were outraged by the decision, and civil war was the result.
• In 1886, in the case "Santa Clara County v. Southern Pacific Railroad," the Court asserted that a corporation was a "person" at law.  It was entitled under the 14th Amendment to the same legal protections as those afforded to human persons.  Officers of the corporation were immune from lawsuits resulting from acts of the corporation.  The corporation itself could be sued for damages but not the officers.  That affirmed an important difference between a corporation and a partnership.  At the time one judge mused that a corporation was a strange kind of "person."  It didn't have an ass to be kicked or a soul to be damned.  More than a century later the Court asserted that since a corporation was a "person" it had a first amendment right to contribute money without limit to a political candidate.  Many of us are outraged by that decision.  There is a plan to amend the constitution to make it clear that the "personhood" of corporations is limited to civil suits and does not grant a right to make campaign contributions or, heaven forbid, be elected to public office.  What would you think of President General Electric?
• About 1941 or 1942 the Court decided that the internment of American citizens of Japanese ancestry was constitutional.  It has recently been reported that a report by the US Navy stated that these citizens were no danger to the country and there was no evidence that they would not be loyal to the United States in the war with Japan.  That report was suppressed by an official in Roosevelt's State Department.
• In 1896 or thereabouts the Court decided that "separate but equal" accommodations for the descendants of former negro slaves were constitutional.  Segregated schools, segregated eating facilities, segregated transportation facilities, etc., were allowable.  This decision was reversed nearly 60 years later in the famous school desegregation case by the Warren Court.

There are other examples of bad decisions, but you see my point.  The Court is not perfect.  However, it has a very important function in our government, that of policing the other two branches, legislative and executive.  In order to carry out its function the Court has to retain the respect of the public.  It must be both politically neutral and legally knowledgeable.  It is unfortunate that recent Presidents have deliberately proposed candidate justices who were biased in favor of economic and political ideologies that agreed with those of the President and his supporters.  It is equally unfortunate that the Senate did not, in most cases, determine and debate the biases of the candidates before voting to confirm them.

Labels: biased justices, Dred Scott decision; Santa Clara County vs. Southern Pacific Railroad decision, Separate but equal