When the Supreme Court makes a mistake
The only corrective is the high court itself, as future generations reconsider once established doctrines. But problems often get worse before they get better, because Supreme Court errors are rarely one-off. When a cabal of judges go astray, they tend to continue. Error follows error, and the frontiers of American freedom are tightening.
Mistakes are, of course, in the eyes of the beholder. The current court’s decision to overturn Roe vs. Wade was not unwelcome to the large minority that opposes the right to abortion. In their eyes, the deer previous was the error. But a more rigorous evaluation awaits. There have been many high court decisions that, while comforting supporters, seem abominable, even inadmissible in the fullness of time – cases that few rational jurists, left or right, would ever try to defend.
Taken together, the miscarriages of justice of the past paint a tragic, almost dismal picture of the role of the court in American history. Eugenics. Forced sterilization. Racial segregation. Internment of citizens on the basis of descent.
« In our system of government the Supreme Court, on constitutional questions, is infallible, though as every one knows none of its members is in sight or sound of infallibility, » said Justice David Brewer , who served from 1889 to 1910.
Brewer knew what he was talking about, as he sat with a group of judges far more conservative than the nation they served. Their decisions have damaged American life for generations, depriving the government of the power to combat the economic excesses of the Gilded Age while giving the imprimatur of the nation’s highest law to discrimination and segregation.
The occasion of Brewer’s remark was a dinner party celebrating the 25th anniversary of the inauguration of this court’s great dissenter, John Marshall Harlan. By today’s standards, it’s hard to classify Harlan as liberal or conservative — he is, in fact, claimed by both sides — but he shared with today’s liberals a sense of foreboding about the court’s impact on the country. His refuge was his faith in the power of dissent. And dissent, he did – with a roar that continues to be heard through the centuries.
But a review of Harlan’s most important cases provides almost a civic-class primer on how miscarriages of justice can linger and do great harm before they are finally overcome. And it reveals that there is no single path to reconsideration.
The easiest route — but less likely to inspire optimism for abortion-rights supporters — is simple persuasion. In 1895, the national economy was strangled by monopoly trusts. Conservative justices were alarmed by the prospect of antitrust lawsuits under the recently approved Sherman Antitrust Act. When the Cleveland administration tried to dismantle the sugar trust – the lowest fruit in the orchard of the trusts, controlling 98% of sugar manufacturing – the judges backed down. A convoluted majority led by Chief Justice Melville Fuller insisted that controlling manufacturing did not, by itself, indicate an intention to control prices.
Surprisingly, Harlan was the only judge to see sophistry, rebutting: « Was it necessary for formal proof to be made that the persons engaged in this combination admitted in words that they intended to restrain the trade or trade? Did anyone expect to find in the written agreements which resulted in the formation of this combination a distinct expression of the purpose of restricting trade or commerce?
It was no small feat: industry after industry, manufacturers banded together and struck exclusive deals with railroad operators to drive out competitors and fix wages and prices. The vast scope of the problem seemed to force some of the same judges to change their thinking. Changing political winds and relentless criticism of court logic have changed the game. In 1905 – only 10 years later – the court had reopened the door to government action to break up monopolies.
For supporters of deer, however, a change of heart from the existing judges seems patently unlikely. The narrow margin on abortion rights – 5-4, as opposed to the court’s 8-1 decision in the sugar case – may give the impression that the court does not have to go so far to achieve to a different result. But unlike the nascent world of antitrust in the 1890s, the buried nature of the moral, political and legal issues surrounding abortion rights suggests that no reconsideration is in sight unless there is a change in the composition of the court.
Shielding trusts from lawsuits wasn’t the only way the Supreme Court extended the golden age: it also blocked efforts to impose an income tax on the wealthy, leaving the government to finance itself through commodity tariffs. Once again, a group of judicial conservatives have decided that the Rockefellers, Vanderbilts and others with large fortunes are the victims of government excesses.
But unlike the Sherman Antitrust Act, the income tax was not a new idea. It had been used to fund the Civil War, so the court could not escape the impression that it was making new rules to protect the wealthy. After the justices split 4-4, the chief justice persuaded an ailing colleague to return to Washington to cast the deciding vote. Except he didn’t: while the ailing lawyer supported income tax, another judge changed his position against it. The air of deception behind the scenes was heightened when Chief Justice Fuller ordered an abrupt announcement of the decision before opinions were written.
Harlan railed against this, scorching the majority for cowardly upsetting a long-established precedent; he also argued that forcing the government to rely on tariffs would be disastrous in a world war, when trade evaporated.
His warnings resonated with the public. But income tax opponents seized on the judgment to block any progressive taxation for nearly two decades. Finally, seeking to placate demands for a new tax to test the court’s mettle, Senate leaders instead agreed to begin the arduous process of amending the Constitution. They doubted that three-quarters of the required states would ratify an income tax amendment. They were wrong. Three and a half years later, after Wyoming, Delaware and New Mexico approved the Sixteenth Amendment on the same day, the tax was back.
It was, however, the last time that a deeply contentious political issue was resolved through the amendment process. Changing the Constitution remains a long and difficult road, as those who want the direct election of the president can testify.
The court’s greatest tragedy during the Harlan years was its rapid backsliding on the rights of African Americans, an injustice not only to millions of people but also to the spirit and plain language of the Constitution. The court struck down federal civil rights protections, refused to enforce the right to vote, and allowed states to ban interracial education. He also endorsed the idea that the separation of blacks and whites was entirely consistent with the Constitution’s Equal Protection Clause, as long as the accommodations were approximately equal.
This case, the infamous Plessy v. Fergusongave rise to Harlan’s famous declarations that « the Constitution is color-blind, and neither recognizes nor tolerates classes among its citizens » and that under the law, « the humblest is the peer of the mighty. »
Harlan’s dissent was immediately recognized by African Americans as a defining statement of intent under the law, but received little attention in the white world. Half a century later, however, it was adopted by Thurgood Marshall and other civil rights lawyers as part of their lawsuit to overturn Plessy.
A new generation of judges has recognized the tragic cost of racial separation for black people. They also anticipated an inevitable backlash among white racists that would occur if the court demanded desegregation. So they worked hard, for months and years, to project a unified front. When the court overturned Plessy in the 1954 case Brown v. Board of Education, the vote was 9-0. It was an unambiguous message, a definitive statement.
Today’s supporters of the court’s decision to overturn Roe vs. Wade invite comparisons with the saga of Plessy and Brown, as a way to show that judges should follow their conscience on legal precedent. But the comparisons also reveal the great distance of spirit between the Brown decision and that in Dobbs v. Jackson Women’s Health. While the Brown the court recognized the potential disruption to the county and spoke with one voice, the Dobbs The majority could not resist overriding the abortion rights by a margin of one vote, almost defying future judges to undo their job.
Back and forth on constitutional law based on a single change in the composition of the court can only undermine the force of the law and the mystique of the court. Thus, one might predict that Chief Justice John Roberts – whose concern for the court’s credibility led him to abstain from voting to overturn deer – might now be reluctant to overthrow Dobbs for the same reason. To prevail, proponents of abortion rights would then need at least two changes in the composition of the courts and the willingness of new judges to abandon any semblance of respect for precedent.
It’s a tall order, but it may, in fact, be the most likely source of repeal. In Harlan’s time, the call to future generations was a call to greater wisdom. Today, those calls are more direct – to judges appointed with a different agenda.