196. The Supremes' greatest hits
When people talk about the Supreme Court, they rarely discuss the real-world impact of the Court's decisions. Partly, I suppose, that's because the impact is hard to measure - but that never stopped anyone from attributing every crisis, catastrophe or economic upturn to whatever president happened to be in office when it happened. And it never stopped historians from patronizing the past, explaining how if only Napoleon had the military acumen of an associate professor, Russians would be bicycling their baguettes home today. (Well, okay, skiing.)
But with acknowledgment that history isn't subject to double-blind trials, and moreover that, pace Scalia, it can't be fixed like a butterfly (or vampire), I think most people would agree that the Supreme Court's decisions have had an enormous impact on American society. Lawyers are trained to think in terms of the decisions rather than their effects. This is my first attempt to catalogue the effects, independent of the decisions themselves and without regard to their doctrinal justification or lack of justification.
Like any greatest hits collection, it's subject to revision. But on this particular afternoon I would rank these as the Court's most consequential contributions to American society:
- Racial segregation. Histories of American apartheid, such as Woodward's classic The Strange Career of Jim Crow, make the point that the most grotesque formalized segregation was, to an extent that most Americans today find surprising, a 20th century phenomenon. That's because it was only in 1896 that the Supreme Court said that "equal protection of the laws" didn't mean, as the legally unsophisticated might have assumed, the equal protection of the laws.
- The 9/11 terrorist attacks. As discussed in post 163, the Court's fatuous decision to allow a purely political lawsuit to proceed against the President compromised the President's ability to respond to bin Ladin's first terrorist attacks against American targets. Clinton was severely criticized, among others by the current governor-elect of Nevada, for attempting to assassinate bin Ladin and destroy the al-Queda infrastructure - the theory being that he was only trying to divert attention from a pseudo-scandal remembered today only as a punchline. As the 9/11 Commission reported, "the 'wag the dog' slur[ and] the intense partisanship of the period ... likely had a cumulative effect on future decisions about the use of force against Bin Ladin." Which is to say, the Supreme Court likely had an effect on those decisions. Does anyone today doubt that those decisions contributed to 9/11 - that Clinton's mistake wasn't being too aggressive, as the Republicans said in 1998, but the reverse?
- The Iraq war. In the recent midterm elections, I think nobody other than Rupert Murdoch (that is, Fox News) was defending the Iraq war. At least, no one defends the conduct and present reality of the war, even if they believe the original goals (whatever they were, exactly) remain valid. No one knows how to avoid the catastrophe barreling down on us like a wrong-way train on our track. Would we be in this national lose-lose situation without the Court's two Bush v. Gore decisions?
- The Civil War. The one, perhaps, was truly inevitable, but Chief Justice Taney's invention of the original-intent school of constitutional "interpretation" - a premodern precursor of postmodern literary criticism (see post 194) - may have accelerated its advent, and it certainly used the moral authority of the Court to muddle the constitutional case for living up to the ideals expressed in the Declaration of Independence - you know, that bit about "all men are created equal". The post-Civil War Supreme Court stuck very closely to Taney's constitutional conception, culminating in its 1896 nullification of the equal protection clause.
- The lynching of Leo Frank. This one, unlike the others mentioned so far, actually had a legal justification (although it's a justification the Court discarded just eight years later). In 1915 the Court declined to involve itself in a state prosecution when the allegation was that an innocent man was condemned to death in a trial dominated by a racist mob. The Court's decision led directly to the innocent man's painful, degrading death. There are many excellent books on the case, including this one, and numerous superb websites, including this. The decade following the Court's 1915 decision was - not by coincidence, I think - dominated by anti-black pogroms (usually euphemistically called "race riots") and institutionalized anti-Semitism.
- Political races decided on the basis of fundraising and TV ads. In the wake of Watergate, Congress passed comprehensive campaign finance reform, which the Court gutted in one of its most fatuous-ever decisions. The Court explained that, because money made TV ads possible, therefore money was speech protected by the first amendment. By the same logic, because the cord to your living room lamp makes illumination possible, therefore the cord is electricity. (See post 133.) The Court gave television stations a huge financial incentive to limit election coverage - why give away what you can sell? The diminution of television journalism, in turn, has helped to reduce our nation's political life to the present sad spectacle of multi-millionaires running for office on platforms no longer than 30 seconds, consisting entirely of appeals to emotion and mostly compounded of personal attacks and lies. (See post 180.)
- Anti-Asian discrimination. The extraordinary violence visited upon Asian immigrants to America in 1880s is something most Americans prefer not to know about. See this website, and this one, and this one. In 1889 the Supreme Court found nothing at all wrong with anti-Chinese legislation. But, it must be said, at least it didn't go quite so far as the California Supreme Court, which ruled that the Chinese couldn't testify in court, even - or especially - when they were the victims of violence or economic exploitation. But then, the U.S. Supreme Court had no need to rule after the California court did.
It might well be said that the Supreme Court wasn't solely responsible for any of the above. But then, the same could be said with respect to any economic upturn/downturn, and yet we don't hesitate to credit/blame our favorite/most despised elected official. I think the Supreme Court had more influence on each of the above than any president has ever had on the unemployment rate. But tell that to the ghost of Herbert Hoover.
Sunday, November 12, 2006 at 12:41PM in Limits of judicial competence, Supreme Court's role, Unintended consequences
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