Supreme Court’s Real Impact

Dear Readers,

We are now at the end of this year’s Supreme Court docket. It will be releasing its most controversial decisions this week, heading into the hiatus until the first Monday in October starting the next term of court. We are going to look at this term’s decisions, in two (2) parts. This column takes a broad sweep at where the court has come from and where it is going; next week, we look at more about the individual cases.

Abortion is probably the single biggest constitutional flash point dividing our country. It is legal nationally in this country (although endangered as a personal right), because Justice Harry Blackmun, Jr., found in Roe v. Wade a right of privacy from the “penumbra” of all of the other individual rights in the Constitution. This was a result foretold by a number of earlier opinions granting an individual’s privacy rights against state government action. It was mainstream at the time.

It was not for centuries, as the Supreme Court protected states against both the power of the national government and an individual’s rights. Successive Supreme Courts denied individual rights to former slaves or minorities. It also ruled in favor of states, when they opposed national authority. The Constitution was used as a shield protecting the States Right’s interpretation of sovereignty and national power over states was limited by judicial philosophy.

Teddy Roosevelt found this out when he sought to expand national power (through expansive use of Congress’ “commerce” and “necessary and proper” clauses) to fight monopolies, unfair employment tactics and unclean food preparation. Entities like the Department of Commerce, Food and Drug Administration and the Fair Trade Commission, were created as bureaucratic behemoths with wide-ranging authority to regulate the safety of our food products and trade. Their authority was challenged, largely successful, as in case-after-case a conservative Supreme Court protected business interests from regulation by the federal government.

This trend was later turbo charged by TR’s cousin, Franklin Delano Roosevelt, and a New Deal promise to use government to rebuild an economy shattered by the Great Depression. An alphabet soup of agencies like the Security and Exchange Commission, Public Works Administration, Federal Deposition Insurance Corporation and the Civilian Conservation Corps, tried to harness the machinery of the federal government to bring order, calm and employment to an ailing economy.

FDR forgot to check with the (still) conservative Supreme Court, and in 1935, one of his signature enactments, the National Industrial Recovery Act, was ruled as an unconstitutional attempt to regulate intra-state commerce, in a landmark 5-4 decision. Two years later (1937), however, presented with a nearly identical legal issue one of the five conservative justices (Owen Roberts), switched sides and voted to uphold a federal minimum wage law. This is the famous “switch in time, saves nine” vote, as an angry FDR had threatened to pack the court after his 1936 re-election. It marked a shift in judicial philosophy.

The idea of national solutions for national problems also bled into litigation attempts to dismantle Jim Crow society post-WWII. The culmination of decades of legal activism was Brown v. Board of Education, eliminating the fiction that schools could be separate but equal and overturning Plessy v. Ferguson. This continued into the Civil Rights Era as both in law, and with approving judicial opinions, more and more power devolved from state governments, but in this context to individuals.

All of this was the product of a healthy judicial debate on how to make the Bill of Rights applicable to states. It mattered, what was a justice’s overall political temperament and approach to the Constitution. The court recognized that the law had been abused to create second-class citizens. Having been tempered to accept federal solutions for “big” issues, and having one-by-one applied the Bill of Rights to states, the liberal Warren and even early-Burger Courts sought out judicial solutions to fight racism.

Conservatives, angered by judicial and legal activism of the Supreme Court during the 1960s and 1970s, seized on theories of reverse-discrimination to bring a new wrinkle to individual rights. They used the idea of an individual being protected from discrimination to strike down laws and practices to reverse the effects of discrimination. This further diluted state power.

Actually, the last of the Bill of Rights to be made applicable to the states (Second Amendment) was by a “conservative” court. In Heller, government was limited in its power to regulate a Second Amendment guarantee of an individual’s right to bear arms, a descendant of years of protecting individuals from state action. This makes our modern court one that is skeptical of government power.

This has been true in the purely political arena, although not consistently. In Bush v. Gore, the court essentially decided a flawed presidential election, albeit with very sloppy and lazy legal reasoning, and took power away from the Florida Supreme Court. Yet, last week we saw the eight-year anniversary of the Shelby v. Holder decision, striking down a part of the re-authorization of the Voting Rights Act, and giving power back to the states.

As you can see, the current mainstream, about resolving the three-part tension of the limits of federal authority, how far a state may go and individual rights, is a bit schizophrenic without a clear unifying judicial philosophy. Some opinions favor individuals over government, particularly in the area of religion, where this court has repeatedly favored individuals complaining of infringement on religious freedom. This court also remains skeptical of federal administrative agencies making law, as opposed to Congress. Yet, the Affordable Care Act still stands and there is that nagging abortion issue, where state governments are increasingly permitted to make decisions hampering a woman’s right to choose.

With this little preface, we await the release of the final opinions for this term. Already, we have seen a quixotic mix of judges joining in some pretty remarkable legal results, like in finding a student suspension an unwarranted school board’s reaction to policing a student’s Facebook expletive-filled rant about not making a cheerleading squad. Surely, there is more to come and we will look at the whole landscape next week.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County, and a former Assistant State Attorney in Miami. Owner of Rockefeller Law Center, Jim has been in private practice since 2000. E-mail your comments or confidential legal questions to jim@rockefellerlawcenter.com.

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