One of the other decisions covered
in the 12-part series also ranks high on the worst-ever list: Scott v.
Sandford, the pre-Civil War decision commonly known as the Dred Scott
case that barred citizenship for African-Americans, free or slave. At least
three of the other historic cases in the series are also generally viewed as
mistakes, and four of the more recent decisions remain somewhat to very controversial
despite some degree of acceptance for each.
In all, only one of the featured
decisions is universally acclaimed: Brown v. Board of
Education, the unanimous Warren Court ruling that outlawed racial
segregation in public schools. Whether or not intentional, the series serves to
remind viewers that the Supreme Court is far from infallible. “Just as the
country has warts and all,” says executive producer Mark Farkas, “the court has
those as well.”
C-SPAN deserves major props
for the series, telecast on Monday evenings and produced in cooperation with
the National Constitution Center. The 12 cases are presented in chronological
order, starting with the Marshall Court’s power-grabbing decision in
Marbury v. Madison (1803) and ending on Dec. 21 with the
still very contentious abortion rights ruling Roe v. Wade
(1973).
Farkas, a producer at
C-SPAN for 30 years, says the goal of the series “was to be representative of a
number of different kinds of decisions the court has made and to be representative
of our country’s history.” And the watchword, he says, was to convey the cases
in human terms to be fully accessible for a wider audience.
Farkas has no legal
training, nor does the program’s host: Susan Swain, C-SPAN’s president and CEO.
Swain is joined in each 90-minute program by two experts, typically academics
but sometimes practicing lawyers.
For the Dred Scott case,
both experts — George Washington law professor Christopher Bracey and
University of Michigan legal history professor Martha Jones — emphasized
that Chief Justice Roger Taney was not only morally wrong but historically
inaccurate in the court’s main opinion. Taney was wrong, the professors
explained, in stating that blacks had never enjoyed citizenship anywhere in
colonial America or in post-independence United States.
The experts for the
Korematsu case similarly spoke with one voice in condemning the 6-3 decision. Karen
Korematsu, who now directs a civil rights institute that bears her father’s
name, and civil rights attorney Peter Irons, author of Justice at
War, both made clear the ruling was infected with anti-Japanese
racism and gave too much credence to the wartime military authorities.
The chosen experts openly
disagreed, however, about the court’s decision in Lochner v. New
York, the 1905 ruling to strike down a New York law limiting the
hours of bakery employees. The ruling gave its name to a 30-year stretch of
Supreme Court decisions striking laws regulating the economy in ways favorable
to workers and consumers and unfavorable to industry.
Randy Barnett, a Georgetown
law professor and author of Restoring the Constitution: The Lost
Presumption of Liberty, defended the 5-4 decision on the ground that
the New York law was an arbitrary infringement of contract rights. From the
opposite side, Paul Kens, a professor of political science at Texas State
University and author of Lochner v. New York: Economic Regulation on
Trial, echoed the dissenting justices in depicting the decision as
motivated by ideology rather than law.
Implicitly, the series
underscores the court’s complex relationship with public opinion and the
political branches of government. In the Dred Scott case, pro-slavery justices
set themselves against advancing anti-slavery forces. In
Lochner, the court’s majority aligned themselves with
industry and capital as the populist, progressive, and labor movements were
gaining strength.
In Dred Scott and to some
degree in Lochner, the majority hoped to be settling a
conflict that was roiling the nation. Taney thought the decision would settle
the slavery issue once and for all. The Lochner majority saw
the ruling as a way to limit the zeal of the reform-minded. In both cases, the
court misjudged.
The court misjudged in
Korematsu and in a second wartime case featured in the
series. The unanimous opinion by Justice Oliver Wendell Holmes Jr. in
Schenck v. United States (1919) upheld the convictions of
Charles Schenck and Elizabeth Baer for distributing an anti-draft pamphlet
during World War I. Holmes joined with Justice Louis J. Brandeis in dissenting
opinions in the 1920s that laid the groundwork for the more speech-protective
approach now established as First Amendment law. Korematsu
remains on the books, but the recent decisions in Guantanamo-related cases
require some judicial process for wartime detentions.
Still to come are two of
the Warren Court’s criminal law rulings: Mapp v. Ohio
(1960), the exclusionary rule case, and Miranda v. Arizona
(1966), which requires police to inform suspects of their rights before
interrogation. In those cases, the court got ahead of public opinion, as it did
to some extent in Brown and more so in Roe v.
Wade.
The court’s success over
time, however, can be seen in the facts that Miranda is now
a part of the national culture and Roe’s essential holding survives
even if battered. Credit C-SPAN with providing an informative and watchable
exploration of how the court formed those successes — and its notable
failures.
Up next: The
Youngstown steel seizure case (Nov. 16).
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