Strengthening Constitutional Self-Government

Publications

God Save This Honorable Court? The Supreme Court’s Year In Review

On Principle, v8n5

October 2000

by Jeffrey Sikkenga

This month, the United States Supreme Court officially begins its 2000-01 term. This event won’t attract as much attention as the World Series or the Super Bowl, but it is every bit as important for the health of our Republic.

In all honesty, the Supreme Court occupies an uneasy place in American life. On the one hand, we Americans are a constitutional people. Regardless of our political party, we venerate this great document that has guided our civic life for 211 years.

In that civic life, the Court plays an unique role through its interpretation of the Constitution. Indeed, most of us believe that the Supreme Court has the last word on the constitutionality of controversial issues like flag burning, gun control, and prayer in school. Barring amendment, its decisions are the law of the land.

On the other hand, very few of us pay much attention to the Court. Sure, it has nine members. But can we name all of them? Any of them? Do we know who holds such vast power? More importantly, do we know how they are using it?

As citizens, we have a responsibility to understand this great American institution and its recent decisions. Over the past year, the Supreme Court has ruled on almost every important aspect of the Constitution, from federalism to abortion to foreign policy. These decisions have profoundly shaped the great contours of our Republic as well as the intricacies of our immediate lives. Hoping to hear a prayer at your grandchildren’s public school sporting event? The Court has spoken. Enrolling your son in the Boy Scouts? The Court has spoken. Want to give money to your favorite political candidate? The Court has spoken.

Federalism

Most citizens don’t often think about the proper balance between the state and federal governments. To many people today, states seem more like lines on a roadmap than real arenas of political power. It has gotten to the point where newscasters say “the government” when they mean “the central government”—as though no other level of government really counts. That is how centralized our minds, if not our politics, have become.

But federalism, thankfully, is alive (if not well) on the Court. In a close 5-4 decision this past term, the Court re-affirmed the view that there are constitutional limits to Congress’ power vis-a-vis the states. The case this year, United States v. Morrison, involved the Violence Against Women Act, which allows a woman to sue her attacker in federal court. While this may sound reasonable, the Constitution only gives Congress certain limited powers; the rest “are reserved to the States respectively, or to the people,” as the Tenth Amendment puts it. Thus in evaluating every law, the fundamental question is: Where does Congress get the constitutional power to pass this law?

In this case, Congress tried to justify the law as an exercise of its constitutional power to regulate commerce “among the several States,” claiming that violence against women has a “substantial effect” on inter-state commerce. According to Congress, the violence did not need to involve commercial activity directly nor have a direct effect on interstate commerce; it could be any category of crime that (taken as a whole) eventually has an effect on commerce, no matter how indirect the route. Unfortunately, in our national economy, any criminal activity could be said to have such an indirect effect on commerce. This would mean, as the majority on the Court noted, that Congress would have a national police power, which would in principle overturn the division of authority between state and federal governments that the Founders thought so essential for preventing a concentration of power in one level of government.
The distinction between state and national would be undermined, and with it the liberty of citizens and the freedom of states to experiment with the best policies for their people.

The First Amendment: Establishment of Religion

Shifting to constitutional rights, the Court made a number of very important decisions. In a controversial First Amendment case, the Court ruled 6-3 that the practice of organized, student-led prayer at public high school football games amounted to an unconstitutional establishment of religion. The case involved a Texas high school that had a student offer a prayer over the stadium loudspeakers before every football game. When some parents threatened to sue, the school changed its policy, allowing students to vote whether they wanted to have a prayer and, if so, who they wanted to offer it. The school district required the student delivering the prayer to offer a “non-proselytizing, non-sectarian” prayer that would not appear to endorse any particular religion or denomination.

The parents still brought suit and the Supreme Court decided in their favor, saying that the students’ use of school elections and the school’s loudspeakers implied that the district endorsed the majority’s specific religious views. In this particular case, the Court may have been right—the earlier prayers had a very sectarian character that clearly favored one denomination over others. As the dissent by Chief Justice Rehnquist made clear, however, the larger issue at stake is whether there is the place of religion in America’s public square.

As people may have seen on the news, students and fans got around the Court’s ruling by voluntarily initiating public prayers at many football games. But this practice also will be challenged, which will expose the real constitutional question: Can government accommodate public expression of religious beliefs among its citizens even if such accommodation seems to favor religion over irreligion? The majority on the current Court may not think so, even though America has had a tradition of public friendliness toward religion that goes back to its very Founding. Our motto is “In God We Trust;” Congress has had chaplains open its sessions with a prayer from its inception; and George Washington proclaimed (at the request of the Congress that passed the Bill of Rights) a day of “public thanksgiving and prayer, to be observed by acknowledging with grateful hearts the many and signal favors of Almighty God.”

At its core, religious freedom means that there can never be a national church, that no one religion or denomination should be legally favored over another, and that no one should ever be coerced into professing religious belief. However, our Constitution is meant to protect the unalienable rights founded on the “laws of Nature and of Nature’s God,” as the Declaration of Independence puts it. As Washington said, liberty is impossible without moral virtue, and religion is the surest guardian of virtue. Our Constitution was never meant to be so militantly neutral that it is hostile to religion. This would undermine the very liberties it is meant to uphold. We must hope that the Supreme Court does not lose sight of this historical and philosophic fact.

The First Amendment: Free Speech

Another well-known part of the First Amendment is freedom of speech. Here the Court made an important if overlooked decision in Erie v. Pap’s A.M. In this case, the Justices voted 6-3 to uphold an ordinance of Erie, Pennsylvania, that requires “exotic” dancers to be at least partially clothed. Four Justices argued that while freedom of speech entails freedom of sexual expression, Erie had good public health and safety reasons to limit that expression. Justices Scalia and Thomas went further, however, and argued that freedom of speech does not include a right to engage publicly in sexually explicit conduct. They’re right.

While it is always good to err on the side of liberty, it is even better to correctly understand the meaning of liberty. Freedom of speech is not simply the right to “express oneself;” it is the freedom to communicate ideas, especially political ideas, to any listener who is free to come or go. Its fundamental purpose is to allow the citizens to analyze, criticize, and try to change the laws. Moreover, the Founders believed that unimpeded argument and pursuit of truth has great value because it shows the rational dignity of human beings—that our actions can be guided by our minds, not just our passions or instincts.

To alter such a constitutional guarantee into an unlimited right of “expression” detaches speech from its larger purpose and inherent link to reason. “Expression” could mean anything—no matter how vulgar, obscene, or irrational. If so, there is no principled reason why people cannot stand on the sidewalk and shout obscenities (unless, of course, they are causing traffic accidents). This not only contradicts other Supreme Court rulings, it also flies in the face of Jefferson’s argument for the dignity of liberty on the ground “that Almighty God hath created the mind free.”

The First Amendment: Freedom of Association

Perhaps the best known case this term involved a familiar American institution, the Boy Scouts. In Boy Scouts of America v. Dale, the Court ruled 5-4 that the Scouts can ban gay members because opposition to homosexuality is part of the organization’s expressive message. Writing for the majority, Chief Justice Rehnquist argued that New Jersey’s anti-discrimination law (which prohibits discriminating on the basis of “sexual orientation”) violates the Boy Scouts’ right to free association. The Court relied heavily on an earlier case that upheld a private parade organizer’s right to exclude homosexual groups from a St. Patrick Day’s march.

While all the Justices seemed to agree that private groups openly opposed to homosexuality cannot be forced to admit gay members, the questions in this case were whether the Boy Scouts are a private group and whether opposition to homosexuality is really part of their association’s message. On both issues, the Court wisely took the Scouts at their word. But the battle is far from over, as the dissenters noted. As more states add sexual orientation to their anti-discrimination laws, more and more private groups will be sued and come under the scrutiny of state and federal courts. Hopefully, the courts will retain the distinction between public and private that keeps government limited to its proper sphere.

Civil Rights

While the Court did not deal with any major affirmative action cases this past term, it did make a noteworthy ruling on race and voting. In Rice v. Cayetano, the Justices voted 7-2 to strike down a provision of Hawaii’s constitution that allowed only descendants of native Hawaiians to vote in elections for trustees of the state’s Office of Hawaiian Affairs.

The Court correctly argued that the Constitution prevents a state from denying the right to vote on account of race, which is what Hawaii was doing in this case. While confining its ruling to the text of the Fifteenth Amendment, the Court moved closer to the position of Justice John Marshall Harlan in his famous dissent in Plessy v. Ferguson (1896), when he prophetically declared that racial classifications would one day be declared unconstitutional because “our constitution is color-blind, and neither knows nor tolerates classes among citizens… The law regards man as man, and takes no account of his surroundings or his color when his civil rights as guaranteed by the supreme law of the land are involved.”

This principle—that citizens are individuals with the same rights and duties regardless of their race, color, or ethnic background—will likely be put to the test in the Court’s future terms when it considers several racial preferences cases.

Criminal Law

Every term, a large percentage of the Supreme Court’s constitutional rulings deal with criminal law. This year, the most closely watched decision involved the warnings made famous by television and the movies: “you have the right to remain silent, you have the right to an attorney,” etc. In the 1966 case Miranda v. Arizona, the Court decided that the Fifth, Sixth, and Fourteenth Amendments require the police to observe procedural safeguards when they take suspects into custody and interrogate them. This was done for the laudable goal of ensuring that confessions are in fact voluntary, which is an essential protection for individual liberty.

Even though many police departments around the country gradually have come to accept and even embrace Miranda warnings for the predictability they provide, the decision sparked enormous controversy in 1966. Responding in 1968, Congress passed a law that allowed the voluntariness of confessions to be evaluated on a case-by-case basis rather than according to the Miranda dictates. Congress claimed that the Miranda warnings were guidelines, not constitutionally-required rules.

Finally, more than 30 years later, the Supreme Court has decided the issue in favor of Miranda. The case, Dickerson v. United States, involved a Virginia bank robber whose confession was thrown out because he had not received his Miranda warnings. Invoking the 1968 law, federal prosecutors proceeded anyway. They lost in District Court, but then appealed to the Circuit Court, where they won. Finally, Dickerson appealed to the U.S. Supreme Court.

Despite appearances, the issue in this case is not the wisdom of the Miranda warnings. They may be good both for protecting people suspected of crimes and for providing police with consistent rules of interrogation. Rather, as the dissent argues, the question is whether the Supreme Court “has the power, not merely to apply the Constitution but to expand it” by essentially making up constitutional rules that have no obvious place in the text, history, or philosophy of the Constitution, just because they seem like a good idea.

Just as disappointing, several Justices voting in the majority (like Rehnquist and Anthony Kennedy) had suggested in earlier cases that Miranda warnings are not always required in order to use a confession (and therefore are not really constitutional rules). These same judges upheld Miranda in this case because they wanted to maintain a long-standing judicial precedent, even though they seem to believe that the original 1966 opinion was not correct. In other words, for them it was better to be consistent than to be right.

Abortion

A final critical decision in this year’s Supreme Court term concerned the problem of abortion. In the most recent case, Steinberg v. Carhart, the Court voted 5-4 to strike down a Nebraska law that outlawed partial birth abortions. The Court did so on fairly narrow grounds, contending that the law was overly broad because it would interfere with abortion procedures that are constitutionally protected. It did not say that a more specific law also would be struck down.

Despite this narrow ruling the Court was badly divided; in fact, Justice Kennedy, who generally supports a right to abortion, joined the dissent of the three other Justices who simply reject the Court’s 1973 decision in Roe v. Wade. Since that first case, the Court has struggled to articulate a coherent understanding of why a woman has a constitutional right to abortion and when that “right” can be limited by law.

The struggle continues because no matter what side of the abortion debate a person is on, almost every scholar agrees (if only privately) that Roe v. Wade was bad constitutional law. It found a constitutional right for a practice that is not mentioned in the text and has no long standing protection in our legal tradition. Even worse, the Court did not clearly articulate any coherent philosophical foundation for this new right. Indeed, the Court contradicted itself in Roe by saying that it did not have the power to say whether a fetus is a person but then going on to claim that a woman has a right to an abortion (which implies, of course, that a fetus is not a person). This basic confusion is bound to arise when judges interpret the Constitution according to “the times” rather than according faithful to its original meaning. In the next abortion cases, we can only hope that the Court will return to sound principles of jurisprudence.

Looking Forward

Even though the Court has taken less than half the cases it will eventually decide this term, it already has some cases worth watching. In the area of criminal law, for example, the Court will rule whether police can set up checkpoints to stop cars, inspect drivers’ licenses and registration, look for signs of impairment, and walk drug-sniffing dogs around the exterior of the car. In the area of federalism, the Court will address whether Congress can allow state government employees to sue their employers in federal court or whether such intrusion in state affairs violates the little-known Eleventh Amendment, which protects state sovereign immunity.

These are only two of the Supreme Court’s future cases. It will eventually take on more controversial issues like school vouchers, gay marriage, and religious freedom.

Given the Court’s importance, especially in this presidential election season, we must familiarize ourselves with its activities. After all, with at least three Justices over 70 years old or not in the best health, Al Gore or George W. Bush will likely appoint enough Justices to tip the balance of the Court for years to come. It may well be the next president’s most enduring legacy.

So we need to be aware of what the Court is doing. We cannot let freedom be eroded by apathy. While we should revere the institution of the Court, we cannot ever forget that eternal vigilance is the price of liberty.

Jeffrey Sikkenga is an Assistant Professor of Political Science at Ashland University and an Adjunct Fellow of the Ashbrook Center.

Get Email Updates

Subscribe to the Email Update