This is a bonus installment in a Governing series on the history of the U.S. Supreme Court, following the U.S. Senate’s historic confirmation of Ketanji Brown Jackson on April 7. The first four essays in the series examined “Myths of the U.S. Supreme Court,” “Why Supreme Court Nominations Sometimes Fail,” “Dangerous Trends on the Supreme Court” and “Life Tenure on the Supreme Court: Appointments and Disappointments.”
Since same-sex marriage was legalized by the ruling Obergefell v. Hodges in 2015, more than half a million gay couples have been married in America. Before that ruling, many gay couples felt marginalized, disenfranchised and discriminated against. They felt that their relationships were officially devalued by American law. Obergefell v. Hodges resulted in a narrow 5-4 decision.
Five: The Number of People it Takes to Change America
That means that five individuals, five Americans in some ways no different from the 330 million others, five Americans who shop for food, go to movies, attend worship, golf or play bridge — these five human beings, Justices Anthony Kennedy (who wrote the majority opinion), Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan changed America. On a question like that, recognizing gay marriage, there is no turning back — for good or ill, depending on your perspective.
Five people. Five men and women of enormous power.
If just one of them had come down on the other side of what must have been, for each justice, a difficult decision, same-sex marriage would be legal in some states, illegal in most.
When his proposal to prohibit slavery in western territories (anything beyond the Appalachians) failed by a single vote in 1784, Thomas Jefferson wrote, “the voice of a single individual … would have prevented this abominable crime from spreading itself over the new country. Thus we see the fate of millions unborn hanging on the tongue of one man, & heaven was silent in that awful moment!”
A Seat of Power
One man, five, or nine men and women — that the fate of a nation should hang on so few shoulders is enough to make anyone feel concern for the immense constitutional power we have put into the hands of Supreme Court justices.
It would be comforting to think that the exalted nine jurists who make up the Supreme Court walked straight out of Plato’s “Republic“ — high-minded, deeply learned, rational, dispassionate, capable of sifting conflicting arguments and evidence, lucid in all of their thinking, lovers of the commonwealth, lovers of humankind. Or characters straight out of the “Federalist Papers” — deeply devoted to the idea of a republic, erring on the side of limited government, human rights and opportunities, committed to the “perfectibility of man.”
But we have seen Brett Kavanaugh rail before the Senate Judiciary Committee. We now know that Clarence Thomas’ wife, Ginni, repeatedly pressured White House Chief of Staff Mark Meadows to do whatever it might take to overturn the 2020 presidential election. Justice William O. Douglas was a than a third his age. Chief Justice John Marshall, often regarded as the greatest justice in American history, owned slaves. So did several other justices of the Supreme Court, including Roger Taney, who wrote the infamous decision in the Dred Scott case. As a young man, Justice Hugo Black was a member of the Ku Klux Klan. Abe Fortis was forced to resign from the court when it became known that he accepted stipends from a firm he had once represented. Even the sainted Ruth Bader Ginsburg has been criticized for hiring only one Black clerk in her 27 years on the court, and for her lackluster support of indigenous people.
Jefferson, never a friend to a fully independent judicial system, sometimes invoked the Roman satirist Juvenal: “sed quis custodiet ipsos custodes?,” we need guardians, yes, but who will guard us from our guardians?
When they make their consequential decisions, no matter what their judicial “philosophy,” justices factor in the explicit wording of the Constitution; what they know of the Founding Fathers’ intentions, social, economic and technological changes that have occurred in the 235 years since 1787; previous court decisions related to the issue at hand; and the changing national and world standards of justice, equity, humanity and order. They ask themselves what the right thing to do is in the case before them. They try to assess the mood of the country, keeping in mind Jefferson’s dictum that “no more good must be attempted than the nation can bear.” They discuss. They argue. Perhaps they pray. And then they vote.
Since Roe v. Wade was decided in 1973, an estimated 55 million to 60 million abortions have been performed in the United States. Whether you think abortion is a rational choice that free women can make about their reproductive lives or a horrific state-supported genocide, nobody fails to understand the staggering power of a Supreme Court decision. No issue, with the possible exception of guns in American life, generates such passionate disagreement. It was a 7-2 decision. Justices Byron White and William Rehnquist dissented. White wrote, “I find nothing in the language or history of the Constitution to support the Court’s judgment.” Of course, there still would have been millions of abortions in the United States if the Supreme Court had declined to weigh in in 1973. By then, abortion was legal in six states and the District of Columbia. Illegal abortions were available in most urban centers. But Roe v. Wade instantly made abortion legal in 44 other states, some of them passionately opposed to legalization.
With the decision in Citizens United v. Federal Election Commission in 2010, the Supreme Court declared that money is speech, which is protected under the First Amendment, and therefore it is unconstitutional to limit the amount of money that independent groups can spend in political campaigns. Thus the doors have opened to essentially unlimited transfusions of money from the wealthiest and most privileged entities in America into our election system. Money has always talked in American life, of course, but in the second half of the 20th century Congress made several earnest attempts to limit the power of money to distort the political process, most notably in the 1971 Federal Election Campaign Act.
All attempts to limit the inordinate influence of money in our politics — essentially vacating the notion of one person one vote — have been less than fully effective. It might even be said to be a truism of politics that “money finds a way.” Most rational people have recognized for a very long time the distortive power of money in our democracy. But with the Citizens United decision, any realistic chance we had to limit the damage money can do to our elections (and the subsequent behavior of our representatives) effectively died.
It was another 5-4 decision. Writing for the majority, Associate Justice Anthony Kennedy said, “If the First Amendment has any force, it prohibits Congress from fining or jailing citizens, or associations of citizens, for simply engaging in political speech.” With one vote, five Americans altered our political landscape: John Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and Anthony Kennedy.
Before the landmark decision in Miranda v. Arizona in 1966, tens of thousands of suspects in criminal cases were frequently cajoled, pressured, tricked or beaten into confessing to crimes they may or may not have committed. As every fan of the cop and trial programs on television knows, the infamous Miranda decision means that a defendant cannot be questioned by police until she or he is made aware of the right to remain silent, the right to consult an attorney and have an attorney present, and the right to make use of a court-appointed attorney if she or he cannot afford to hire one. It was another 5-4 decision, based on provisions of the Fifth and Sixth Amendments. Although this requirement has frustrated law enforcement personnel and prosecutors, and sometimes makes it possible for guilty individuals to escape justice, the court insisted that not all accused individuals know that they have fundamental constitutional rights, and therefore they cannot be fairly prosecuted unless they have access to legal advice and legal tools.
No wonder confirmation of Supreme Court nominees is intense and dramatic. The power of one more than half of the nine justices is breathtaking and more than a little frightening to anyone who believes we live in something approaching a democracy. Easy cases don’t reach the Supreme Court. The court often must clarify the sometimes vague or general language of the U.S. Constitution. When the Founding Fathers prohibited “cruel and unusual punishments” in the Eighth Amendment, branding, ear-clipping and public hanging were still regarded as acceptable punishments in some parts of America, which makes you wonder what the criteria of “cruel and unusual” must have been. What is an illegal search or seizure? How long can you stretch out legal action before it violates the Sixth Amendment’s guarantee of a speedy trial?
The court decides whether your municipality can condemn your home to throw up a privately owned shopping mall. The court decides if you can pray at a high school baccalaureate ceremony. Whether you can own an assault rifle or a “Saturday night special.” Whether you can download pornography. Whether you can deny reproductive services in the benefits package you offer your employees. Whether you can put up a nativity scene on the courthouse lawn.
The Supreme Court allowed the internment of Japanese Americans during World War II. Approximately 120,000 Japanese Americans were locked up for the duration of the war. The Supreme Court decided which of two candidates with an almost identical number of votes should be president of the United States in 2000.
We dress them in long black robes and surround them with rites, rituals and ceremonies to increase their authority and credibility. They get prime seats at the annual State of the Union message. They are often seen as the mental giants and legal aristocrats of the American national government. But thanks to the incessant media attention of our time, including social media, the televised confirmation hearings, the indefatigable zeal of the pundit class, the collapse of the taboo discretion that used to give public figures a relatively high level of privacy in their personal doings, we now know too much about Supreme Court justices to surround them with an unblinking aura of invincibility. We increasingly recognize them as men and women like other men and women, but with legal training.
Alexis de Tocqueville had it exactly right when he concluded, in his 1835 classic, “Democracy in America”: “A more imposing judicial power was never constituted by any people.”
You can hear more of Clay Jenkinson’s views on American history and the humanities on his long-running nationally syndicated public radio program and podcast, “The Thomas Jefferson Hour,” and the new Governing podcast, “Listening to America.” Clay’s new book, “The Language of Cottonwoods: Essays on the Future of North Dakota,” is available through Amazon, Barnes and Noble and your local independent book seller. Clay welcomes your comments and critiques of his essays and interviews. You can reach him directly by writing email@example.com or tweeting @ClayJenkinson.