by Judy Jones
By all standards of propriety, Marshall should have been vacationing in Acapulco while this case was being argued. Instead, he wrote the opinion himself, managing to turn it into the classic mix of law and politics that approaches art. First, he declared that Marbury was theoretically entitled to his commission. Second—and here’s the twister—he denied Marbury’s petition on the grounds that the part of the law that allowed the Supreme Court to issue writs of mandamus in this sort of case was unconstitutional, and therefore null and void.
The results: (1) Marbury got to keep his dignity, if nothing else; (2) Jefferson was appeased because Marbury didn’t get the job; (3) the Court avoided a confrontation with the president it would certainly have lost, since it didn’t have the power to enforce a writ of mandamus even if it had had the power to issue one; and (4) most important, the Court officially established itself as the final arbiter of the constitutionality of any law passed by Congress, and it did so by righteously denying itself a power. This last point made the Court the effective equal—in a checks-and-balances sort of way—of both Congress and the president. And let’s not forget that (5) Marshall came away from the case looking like the soul of judicial integrity, not only because he’d rejected a Federalist place-seeker, but because the law he’d overturned was a Federalist law. This left him free to spend the next thirty-five years interpreting the Constitution and shaping American history according to his own brilliant, but decidedly Federalist, views. McCULLOCH v. MARYLAND (1819)
Why should you care about a case that prevented the state of Maryland from taxing notes issued by the Second Bank of the United States? Because what was really in question was the constitutionality of the Bank itself, and the Bank brouhaha was symbolic of the major preoccupation of the day: Who was going to run this show, the federal government or the individual states? Had John Marshall not had his way, we might have ended up as a loose confederation of states that couldn’t see eye-to-eye on anything, and that certainly wouldn’t have had a prayer of pooling their resources to produce a Miss America pageant.
The controversy over the establishment of the First Bank of the United States was still smoldering in the hearts of states’ rights advocates when this new outrage came along. They argued that by incorporating the Second Bank, Congress had exceeded its constitutional powers and that, in any event, the states could tax whatever they wanted to as long as it was on their turf.
Marshall, who, as you’ll recall, was an ardent Federalist with a vision of a strong Union, scored the biggest win of his career with this one. In upholding the constitutionality of the Bank’s incorporation, he managed to fire off several statements that subsequently became classics of American law. For instance, he deftly worked the opposition’s argument—that nowhere in the constitution was Congress specifically empowered to charter a bank—into the premise that the Constitution speaks in a broad language so that it can be “adapted to the various crises of human affairs.” He also claimed that the sovereign people had made the central government supreme over all rivals within the sphere of its powers, and concluded that the Maryland tax was invalid because “the power to tax is the power to destroy,” and it just wouldn’t make sense to let a supreme power be destroyed by an inferior one. He neatly summed up the whole thing:
Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited but consist with the letter and spirit of the Constitution are constitutional.
Thus, with a few well-chosen words, Marshall not only proclaimed, once and for all, the supremacy of national over state government (well, there was still the Civil War to come, but the theory, at least, was now down on paper), but also established both the federal government’s—and, by extension, the Court’s—right to make what was henceforth to be known as a “loose construction” of the Constitution. Which, of course, is another way of saying it’s anybody’s ball game. DRED SCOTT v. SANFORD (1857)
Yes, Dred Scott was a slave; no, he had nothing to do with John Brown or Harpers Ferry. Nearly everyone seems to have a mental block here, so let’s get the story straight, even if it is a bit of a downer. Dred Scott was a Missouri black man who sued his master, claiming that he had been automatically freed by having been taken first to Illinois, a free state, then to the Minnesota Territory, where slavery had been forbidden by the Missouri Compromise.
The case was a real cliff-hanger; not only did the Court take forever to decide, but, given the year, there was, naturally, a lot more at stake than one man and a few legal loopholes. The whole country was waiting to see who would ultimately get control of the new western territories. If the slave states succeeded in institutionalizing slavery there, it would mean more votes and political power for the agrarian South. If the antislavery states got their way, it would mean an even greater concentration of power for the industrial North; in which case, the South threatened, it would secede.
Finally, Chief Justice Roger Taney delivered the opinion for a predominantly Southern Court. First, he ruled, Negroes were not citizens of the United States (they had, as he put it, “no rights any white man was bound to respect”) and were not, therefore, entitled to go around suing people. Petition denied. The Court could have stopped there, but it chose to go for the extra point: Scott, it declared, couldn’t possibly have been freed by his stay in the Minnesota Territory because Minnesota wasn’t free territory. In fact, Congress had no right to create free territory since, in so doing, it had violated the Fifth Amendment by depriving Southerners of their right to property. Ergo, the Missouri Compromise was unconstitutional, null, and void. The South, naturally, saw this as the Supreme Court’s shining hour, while Northerners began to mutter that maybe there was a higher law than the Constitution, after all. HAMMER v. DAGENHART (1918)
Once the Civil War had dispatched the federal/state power struggle, the Court turned its attention to the country’s latest concern: getting rich. Making America wealthy involved yet another wrestling match, this time between government and business. Now the justices leapt into the ring, headed straight for the big-money corner, and spent the remainder of the Gilded Age utilizing their now-considerable repertoire of judicial maneuvers to defend vested wealth against government interference. From Reconstruction through the Depression, they handed down a series of decisions that succeeded in blocking federal and state regulations, promoting the principle of laissez-faire, and generally helping the rich get richer. By the early twentieth century, the Court found itself pitted not only against government, but against what it saw as the menace of socialism (the growing labor movement) and the clamor of the masses (social reform).
Hammer v. Dagenhart was one of the more memorable illustrations of the spirit of the age. In it, the Court overturned a congressional act designed to limit child labor. The act prohibited interstate or foreign commerce of commodities produced in factories employing children under fourteen and in mines employing children under sixteen. (If the legislation seems a bit roundabout, it’s because the Court had already ruled it unconstitutional for Congress to interfere in the manufacture of goods in any way.) The suit, by the way, was brought by Dagenhart, who had two sons working in a North Carolina cotton mill and who was determined to keep them there. Describing himself as “a man of small means” with a large family to feed, Dagenhart claimed that he needed the boys’ pay “for their comfortable support and maintenance.” The Court’s unshakable conservatism and consistent success in such cases blocked social legislation for years and finally led to Franklin Roosevelt’s notorious efforts to “pack the court” with justices friendly to the New Deal. The Court did eventually bow to public pressure for reform, of course, so feel free to hold it responsible (along with the Democrats) for the development of the “welfare state.” SCHENCK v. UNITED STATES (1919)
The case that set the bottom line on freedom of speech and, in so doing, gave Justice Oliver Wendell Holmes the opportunity to make one of the Supreme
Court’s most historic statements:
The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing panic…. The question in every case is whether the words are used in such circumstances and are of such a nature as to create a clear and present danger that will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree…. When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as being protected by any constitutional right.
The principle of “clear and present danger” became one of the rare justifications for restraining freedom of speech (until the 1990s, that is, when political correctness seemed like reason enough to some folks). In the case at hand, it was used to deny the petition of John Schenck, a young man arrested for distributing pamphlets arguing against the legality of the draft. In the Thirties and Forties, it became the basis for prosecuting many people whom the government considered politically subversive. BROWN v. BOARD OF EDUCATION OF TOPEKA (1954)
The decision that, theoretically at least, ended school segregation, although Little Rock was still three years down the road. Brown, which was the umbrella for five separate segregation cases from five different states, was the petition brought on behalf of eight-year-old Linda Brown, whose father was tired of watching her take the school bus to a blacks-only Topeka school every day when there was a whites-only school within spitting distance—so to speak—of their home. The Court’s decision overturned the principle of “separate but equal” facilities it had established with Plessy v. Ferguson back in 1896. Separate but equal was the doctrine that had, for sixty years, allowed segregationists to insist that they weren’t implying that Negroes were inferior just because they didn’t want to eat, wash up, or share a bus seat with one. Only slightly less controversial than the Scopes trial, Brown attracted friend-of-the-court briefs from everyone from the American Jewish Congress to the AFL-CIO, but the main characters to remember are:
Thurgood Marshall, the NAACP lawyer who argued for the petitioners and who later became the Supreme Court’s first black justice.
Dr. Kenneth B. Clark, the New York psychologist who made the courts safe for psychosociology by introducing as evidence his now-famous “dolls experiment.” Clark had shown a group of black children two dolls, one black and one white, asking them to choose the doll they found prettiest and would most like to play with, and the doll they thought looked “bad.” The children’s overwhelming preference for the white doll was seen as proof that segregation was psychologically damaging to black children.
Chief Justice Earl Warren, who proved his talents as an orchestrator by herding eight feisty justices and nine more or less dissimilar viewpoints together to form one unanimous opinion; to wit, that “separate educational facilities are inherently unequal.”
President Dwight D. Eisenhower, who was so unsympathetic to the cause of desegregation that the Court, knowing it couldn’t count on him to enforce its decision, put off elucidating the how-tos of the opinion for a whole year. At that point, in Brown II, it made the cautious, and ultimately disastrous, declaration that the Southern school districts must undertake desegregation measures “with all deliberate speed,” a phrase which many Southern school districts chose to interpret as sometime in the afterlife. BAKER v. CARR (1962)
All about reapportionment, but don’t go away, we won’t bore you with the details (unless of course, you’d like to know that Baker was the disgruntled voter, Carr the election official, and the setting was Tennessee). Besides, Earl Warren claimed that this was the most important decision of his not unremarkable tenure as chief justice. What you need to grasp: That the country’s demographics had changed over the years but its election districts hadn’t, so that small towns and rural areas were consistently overrepresented while cities were underrepresented. This put power firmly in the hands of minority and special-interest groups, who were determined to keep it there. The Court had long refused to get involved in the “political thicket” of voting rights, but with Baker v. Carr, it plunged in and decided that unequal election districts were discriminatory and violated the Fourteenth Amendment. This, and the armload of reapportionment cases that followed, not only gave us the phrase “one man, one vote” (or, as more progressive historians would have it, “one person, one vote”), it also shifted the country’s center of gravity from the hinterlands to the cities. Paradoxically, the decision helped open the can of worms that was the Voting Rights Act of 1965, which, with its 1982 revision and various related court rulings, legitimized gerrymanders created for the specific purpose of giving African Americans a chance at political power in states notorious for racial discrimination. In 1993, however, a much more conservative Supreme Court suddenly got fed up and declared unconstitutional a particularly eye-catching racial gerrymander in North Carolina, a snakelike critter 160 miles long and, in some spots, no wider than the two-lane highway running through it. MIRANDA v. ARIZONA (1966)
The rights of the accused, especially the right to counsel, the right to remain silent when taken into custody, and the right to be informed of one’s rights, were at stake here. But you already know this if you’ve ever watched network television. You may also know that the Miranda rule makes cops snarl and gives the DA ulcers. Miranda was the culmination of a series of decisions designed to protect the accused before trial, all of which got their muscle from the exclusionary rule (i.e., throwing out evidence that doesn’t conform to tight judicial standards) and none of which won the Warren Court much popularity with law-and-order fans.
The issue is, in fact, a sticky one. Consider it, for instance, from the point of view of Barbara Ann Johnson. One day in 1963, Johnson, an eighteen-year-old candy-counter clerk at a movie theater in Phoenix, was forcibly shoved into the backseat of a car, tied up, and driven to the desert, where she was raped. The rapist then drove her back to town, asked her to say a prayer for him, and let her go. Soon afterward, the police arrested twenty-three-year-old Ernesto Miranda, a high school dropout with a criminal record dating back to the time he was fourteen. Miranda had already been convicted of rape in the past. Johnson identified him in a lineup. Miranda then wrote out a confession, stating that it was made with full knowledge to his rights. He was convicted and sentenced to forty to fifty-five years in prison, despite his court-appointed lawyer’s contention that his client had been ignorant of his right to counsel. An appeal to the state supreme court failed, but the Supreme Court’s decision set Miranda free. Miranda and the ACLU were naturally appreciative of the Court’s libertarian stance, Barbara Ann Johnson less so. But not to worry. Miranda was later reconvicted on new evidence. He served time in prison, was released on parole, and was stabbed to death in a Phoenix bar ten years after the Court’s landmark decision. Although the Burger Court didn’t really make chopped meat of this and most of the other Warren Court rights-of-the-accused provisions, as conservatives had hoped, the Rehnquist Court did. A BOOK NAMED JOHN CLELAND’S “MEMOIRS OF A WOMAN OF PLEASURE” v. MASSACHUSETTS (1966)
Fanny Hill goes to Washington, there to help clarify the hopelessly vague three-pronged definition of obscenity the Court had formulated nearly a decade earlier in Roth v. U.S. Since Roth, the burden had been on the censors to prove that a work under scrutiny (1) appealed to prurient interest; (2) was patently offensive; and (3) was utterly without redeeming social value. But every small-town PTA seemed to have its own idea of what all that meant, and whatever it was, it usually involved harassing the manager of the local bookstore or movie theater. In Fanny Hill, which was decided in a single day, along with two other obscenity cases, the court took great pains to speak slowly and enunciate carefully: Even when there was no question that a work fit the first two criteria, it could not be declared obscene unless it was utterly without redeeming social value—not a shred, not a smidgen. And Fanny Hill didn’t fit that cri
terion. Of course, the judgment went on, that doesn’t necessarily mean that the book couldn’t be ruled obscene under certain circumstances, say, if the publishers marketed it solely on the basis of its prurient appeal. That helped. Pornographers took to making “medical films” prefaced by passages from Shakespeare, and the Court continued to be deluged by obscenity cases for years, until it finally threw up its hands and turned the whole mess into a question of “community standards” and local zoning laws. FURMAN v. GEORGIA (1972)
Capital punishment outlawed, in one of the longest (243 pages) and most tortured (a 5–4 split and nine separate opinions) decisions in the Court’s history. Never mind the gory details of Furman, which was only the lead case among five involving rapes, murders, and rape-murders. More to the point are the four separate arguments the Court was asked to consider as bases for declaring the death penalty unconstitutional:
The death penalty was imposed in a discriminatory manner; statistics showed that it was usually black and poor people who died, whereas middle-class whites simply hired the kind of lawyers who could get them off.
