Teaching
I was a school teacher for twenty-eight years. I taught social studies: economics and current affairs, World, American and Ohio history, and from sixth graders through seniors. But for most of those years I was an American Government teacher. We called it “Principles of Democracy” or “POD” at the beginning, but eventually we got down to just “Government”. And when I was teaching, it was a senior class, the “best, last chance” to teach the soon to be voting students about their government, their rights and responsibilities. I started when the Vietnam War was “recent events”, a draft card still in my wallet. I ended with some graduates headed to Afghanistan and Iraq to fight our battles there.
No matter the year or the era, there were certain basic concepts from beginning to end. We discussed the nuances of the Constitution, the competing forces among the branches and levels of the government, and the people. We had rituals, like the “process of legislation” lecture (“I’m Just a Bill” on steroids) that was diagramed in chalk across the entire front of the room. There were the mock trials, followed by a trip to the Courthouse (and the Spaghetti Warehouse). And there were the discussions: how could the Founding Fathers write about liberty and own slaves; what were the limits of Freedom of Speech; and why have we fought six wars without Congress declaring one?
Basic Principles
One basic principle was about the nature of the Supreme Court. It is the least defined of the three branches of government. Article I outlines the legislative branch with ten sections, Article II the executive branch, four. The Judicial article only has three. The Court determined for itself (Marbury v Madison) their fundamental power of judicial review, but its jurisdiction is still restrained by Congressional legislation. And unlike the Congress and the Executive, both independently selected by “the people”; the Justices are dependent on both those branches to gain their seats. But once there, they are unfettered by any process of recall (except impeachment for “bad” behavior).
When I taught about the Court(s), I called on my brief stint in law school to add to the explanations. A foundational core of Judiciary of the United States was this: there are no “advisory” opinions. The Court only rules on actual facts, in cases where someone could claim actual damages. While the law, and certainly law school, was filled with “what-if’s”, the Court itself was bound by the facts of a case in front of their bench, the laws “on the books”, and the precedents going back centuries of how other judges decided similar situations.
Stare Decis
Precedence is one way that judges, and particularly Justices of the Supreme Court, can measure their personal opinions against generations of judges. While a single judge may be passionate about an issue or “side”, it is part of their obligation to “balance” those passions against the past. Precedence has weight, both in respecting previous generations of the judiciary, and also as a sign of stability in the Judicial system. Stare Decis (precedence) is the “footer”, the foundation upon which our whole legal system is built. (And a basic “building block” of law school, where the “foot-notes” are all about bolstering each legal assertion with “on point” decisions of the past).
Both of those principles, determining the law based on fact, and tempering passion with precedent, went out the window last year in the United States Supreme Court.
Duty Bound
Justices Kavanaugh, Barrett, Gorsuch, Alito, Thomas and Roberts all paid lip-service to the importance of Stare Decis as they sat before the Senate. They all used terms like “…well and accepted law” when talking about Roe v Wade and the whole series of cases dealing with affirmative action. But in this past year, they determined that the weight of their own interpretation of the Constitution was more important that the decades of Court decisions honoring those precedents. They overturned Roe, Casey, Baake, University of Michigan, and redefined the nature of public discrimination.
I suspect they see themselves as the modern Earl Warren’s and William Douglas’s, changing American law to their own version of the Constitution. Actually, I imagine that they see themselves as duty bound to undo the decisions of that era; seeing the decades from Brown v Board of Education to Planned Parenthood v Casey as a massive Constitutional aberration to be “fixed”. It’s hard to determine if they “just” have a different view of the Constitution, or a different vision of America.
Cases to Fit
In the Harvard case, Asian students were the defined “victim” of affirmative action. And while lower Courts determined that they were not really aggrieved (NYT), the Court majority used their plea to justify a “color-blind” interpretation of the 14th Amendment (written literally to guarantee that the Black formerly enslaved gained full citizenship status). Forty-five years of Supreme Court decisions were thrown out.
The Asian students became the “straw-man” to support the pillar of “aggrievement”, regardless of whether they were really damaged or not.
And in the 303 Creative v Ellis, the Court determined a case based on “what-if’s”. A web designer determined that she wouldn’t open a wedding webpage business, because IF she did and a gay couple asked for a page, then she would refuse to do it, in violation of Colorado law. She filed her case before there was any actual business, any actual gay couple asking for a webpage, and any actual violation of the Colorado law. As a plaintiff without damage, she shouldn’t have had standing in the first place.
Facts Didn’t Matter
But the Court overlooked her lack of qualification, and even was “bamboozled” by fake statements in her brief. Instead, the majority created a whole new “cut-out” in the free speech clause of the First Amendment, claiming her right to free speech allows her to discriminate against gay couples in her (aspirational) public business.
It opens a whole new expansion of discriminatory behavior, based on speech rather than religious beliefs. It raises the specter of the worst public discriminations of the past. If I am a “cheeseburger artist”, in a public restaurant, can I refuse to serve a gay couple, an interracial couple, a Black or Asian person, because I don’t “believe” in their choices? Can I determine who sits at my lunch counter? Can I use an ax handle to drive unwanted customers from my establishment (Georgia)? (After all, that was in 1965, not that long ago).
And if a case could be made just on “aspirations”, then Rosa Parks didn’t need to sit in the front of the bus, or Oliver Brown didn’t have to try to enroll his daughter Linda in school, or Mary Beth Tinker didn’t have to wear her armband to protest the Vietnam War.
Mission
Clearly, it’s the mission of the current Supreme Court majority to turn back the decisions of the past half century. And they are in such an all-mighty hurry to do it, they are willing to risk the very foundations of the Court they now control. When Chief Justice John Marshall ruled that the Cherokee could not be driven from their homes in Georgia onto the Trail of Tears (Cherokee Nation v Georgia), President Andrew Jackson stated: “John Marshall has made his decision, let him enforce it”.
Jackson ignored the Court, and did what he wanted regardless of their decision. It was the political consequence that Marshall avoided in Marbury v Madison. The actions of today’s Court puts it squarely in the same jeopardy. Will the “rest” of the government support a Court so out of step with its time? Or will it simply wait, until these Justices are gone, and a new Court can undo the damage done by the radical majority in the saddle?
And what are Government teachers saying in class today?
