Law of the Land

There have been a lot of consequential decisions handed down by the Supreme Court lately.

Perhaps one could argue that all decisions made by the Supreme Court are consequential.

There was the decision on Arizona’s immigration law and there was the decision on Obama’s healthcare plan.  There was the decision about giving minors a life sentence without parole and there was the decision about how much power Unions have over non-union members.  There was also the decision about how strict the FCC can be over incidents of expletives and nudity on television.

In the midst of all of this recent uproar, I have been thinking about and looking back on past years of the Supreme Court.

One thing I have found interesting is that this Roberts Court has changed, or at least interrupted, the trend of the Supreme Court to become more and more broad and momentous in its decisions.

Until the 1940’s or 1950’s, the Supreme Court simply made decisions on the cases it was given. Around the mid-twentieth century though, especially during the Warren Court, the Court began making broader and more sweeping decisions that affected the policy of the entire United States rather than solely impacting the case or the law that was under judgement.

This trend has had the effect of giving the Supreme Court the sort of power that is held by Congress and the President. The sort of power that can change the law and policy of our country.

The Roberts Court seems to be deliberately scaling back this trend. The majority of the judgments handed down by this current Court are much more narrow, are applied only to the particular case in dispute rather to the entire country. I will let people who are smarter than I tell you why this is, but one thing I find of interest about this is that there have been many more unanimous decisions with this Court than in the past.

Another interesting effect of this narrowing of the role of the Supreme Court has been that, until fairly recently, the Court has faded a bit in the public eye. Chief Justice Roberts seems to be comfortable with not setting his aim for creating a public legacy, for making himself and his Court more important.

I wonder what you think. Should the role of the Supreme Court be more broad, affecting public policy in a large way, or should decisions be more narrow, confined to the case and the law in question? 

I think that many conservative Christians would instinctively lean toward the latter opinion. After all, wasn’t it the comprehensive judgement in Roe v. Wade that made abortion legal and set our hearts to aching for all of those unborn babies?

Yet in the interest of conversation and in the interest of using our hearts and minds rather than only our hearts, we should think about other changes the Court has made over the years. Good changes as well as poor changes.

The first and biggest example that leaps to my mind is the very broad judgement in Brown v Board of Education. If you need refreshing on your case names, this is the judgement that paved the way for the ending of racial segregation in our country. This is the decision that stated that separate is not equal.

Who of us would ever say that ending racial segregation was a bad thing? Yet when Congress wouldn’t do the job it should have done, it took the Supreme Court making an encompassing judgement to change the policy of our nation.

So. Narrow or broad? Case-deciding or policy-changing? Should the policy and laws of this country be decided only by an elected Congress and President or should the appointed Supreme Court be allowed to step in when others are not courageous enough to do the hard thing? And who gets to decide which hard thing is right: abortion, segregation, right to an attorney, gay marriage? 

I’m interested to hear what you think. 

I’m interested to continue watching the Roberts Court and to discover where they will lead our country.

4 thoughts on “Law of the Land

  1. I think the court’s role is to decide the cases before it and decide whether a given law or practice violates the Constitution. And by this I mean the Constitution as written; I think to embrace a “living Constitution” is essentially to disregard the Constitution altogether.

    I think this approach still allows you to make broad decisions with sweeping affect, though you should certainly exercise restraint in doing so.

    Is Brown v. Board an activist decision? In some ways, absolutely. There’s no question that the drafters of the equal protection clause did not have in mind black and white children going to school together. Though slavery had been ended, virulent racism was still widespread, both in the north and the south. True integration was not contemplated.

    And, yet that word “equal.” Just as Thomas Jefferson’s declaration that “all men are created equal” went on to have echoes that he could not anticipate, so to, the words “equal protection,” once included in the Constitution,
    stood on their own, stubbornly adhering to their plain meaning regardless of what may have been intended. And so, in a way, Brown v. Board is a constructionist opinion. The Warren Court was merely saying that “equal” means “equal,” and segregation violates that equality, regardless of what the drafters intended or what justifications were offered at the time.

    So, I guess I where I come down is that, the Constitution says what it says, and the Court is to adhere to those words and apply them strictly, yes, but sometimes broadly, as well.

    • I think, if I understand you correctly, that I agree with you. The Court does have the role, when necessary, to make policy-changing decisions if they decide that said policy is unconstitutional.
      One interesting idea I heard while thinking through these things was from Mars Hill Audio. The author was making that case that many of the “liberal” (for lack of a better term) courts in the past 60 years have made more and more broad decisions in the interest of leaving their legacy, of making a very public impact after they are gone.
      The author made the case that the Roberts court is different in that Roberts is not interested in being public, in fact has stated that he would rather that his judgments be interesting only to lawyers, which is having the result that the court decisions are much more narrow.
      Obviously one can never know the motivations of another, but it is an interesting point of view to consider.

  2. VERY interesting post. I think I would prefer to see the the Supreme Court view case by case, very focused opinions without sweeping national policy. I do not see it necessarily as their right.

    When the S.C. makes a decision that a “Narrow vote” of only one should not be regarded as a legal decision but a mandate for the case to be put before the people. As in let that state give it’s answer by national vote.

    Even if the case you cited for equal education, which I by no means disagree with – if that case had been led simply to Brown vs Board of Education, it would have set precedent. Allowing quick resolution to Shepherd vs BOE and MacIntire vs BOE and so on…then Congress would have been forced to stop ignoring the issue and build the Bill making it law.

    I’m not comfortable with the Supreme Court making sweeping decisions as they are not appointed by the people for the people. Then again…neither is the President. I’m all for electoral reform and ending the electoral college. The rampant disregard for civil liberty, law and personal freedom in this nations state caucus’ and Primaries go to show the current system is too corrupt to function.

    • That’s an interesting idea, that even narrower decisions would set precedents that would lead to policy change. I’ll have to think that through a little more!

      I, too, am a bit uncomfortable with appointees causing such wide-spread policy change, yet think that it truly is the role of the Court to decide whether laws (and thus, policies) are constitutional or not. Perhaps that is where the mixture of judges appointed by various Presidents works well.

      I certainly don’t have any answers, just mostly wanted to challenge people to think through things carefully rather than automatically making decisions based on a label of “liberal and broad” or “conservative and narrow”. We may still decide that we disagree, but at least we have thought things through!

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