Nine unelected Supreme Court Justices are tasked with deciding the most important issues confronting our country. For better or for worse, we the people are beholden to the jurisprudence of nine politically unaccountable legal minds. However, the minds of Supreme Court Justices are neither infallible nor uniformly programmed. Justices come to the bench with different backgrounds, biases, methods of analysis, and interpretations of the Constitution. These idiosyncrasies yield the legal decisions that regulate our democratic way of life and reflect the norms, values, and attitudes of society.
Supreme Court decisions are a yardstick to measure society’s progression. Not all that long ago, in many infamous cases, the Supreme Court reached legal conclusions deemed unfathomable today. The Dred Scott decision, Dred Scott v. Sandford, 60 U.S. 393 (1857), held that former slaves even in the “free states” of the North were not free and denied them access to federal courts. In Plessy v. Ferguson, 163 U.S. 537 (1896), the Court declared the doctrine of “separate but equal,” holding that a man that was one-eighth black and seven-eighths white was not permitted to sit in a white-only carriage because he was required to sit in a black-only carriage, which was considered legal “equality.” In Buck v. Bell, 274 U.S. 200 (1927), the Court upheld a statute permitting the compulsory sterilization of intellectually disabled individuals, noting “[t]hree generations of imbeciles are enough.” This opinion was cited by the Nazis a decade later. In Korematsu v. U.S., 323 U.S. 214 (1944), the Court upheld the internment of thousands of Japanese-Americans while Americans of all races were overseas fighting fascism.
It is critical to note that these decisions were the result of deliberations, and not a single one was unanimously decided. Even cases that have been deemed stains on constitutional jurisprudence included prophetic dissents that vigorously fought to uphold the core values of our Constitution: Korematsu v. United States, 323 U.S. at 242 (Murphy, J., dissenting) (“Racial discrimination in any form and in any degree has no justifiable part whatever in our democratic way of life. It is unattractive in any setting, but it is utterly revolting among a free people who have embraced the principles set forth in the Constitution of the United States.”); Plessy, 163 U.S. at 559 (Harlan, J., dissenting) (“Our Constitution is color-blind and neither knows nor tolerates classes among citizens.”); Dred Scott, 60 U.S. at 582 (Curtis, J., dissenting) (“[I]t is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is . . . contradicted by its opening declaration, that it was ordained and established by the people of the United States.”).
As is often said with regard to the Supreme Court, yesterday’s dissent is tomorrow’s majority opinion. Canonical dissents shape future deliberations as well as public discourse, and are the fuel that keep democracy moving forward. As Justice William O. Douglas stated, that “judges do not agree . . . is a sign that they are dealing with problems on which society itself is divided. It is the democratic way to express dissident views.” Melvin I. Urofsky, Dissent and the Supreme Court: Its Role in the Court’s History and the Nation’s Constitutional Dialogue 220 (2015).
Progress is measuring what was to what is. Thirteen years after Justice Curtis stated the Constitution was not “made exclusively for the white race,” the Civil War amendments were ratified abolishing slavery, guaranteeing equal protection under the law, and ensuring the right to vote. Fifty-eight years after the lone dissenter Justice Harlan pronounced “[o]ur Constitution is color-blind,” the spirit of his dissent was vindicated by the Court’s unanimous decision in Brown v. Bd. of Ed. of Topeka, Shawnee Cty., Kan., 347 U.S. 483 (1954), the death knell to the “separate but equal” doctrine established by Plessy. Some forty years after Justice Murphy’s scathing dissent asserting that the internment of thousands of Japanese-Americans “falls into the ugly abyss of racism,” Congress issued a formal apology and paid reparations.
These progressions reflect the flaws and resiliency of our legal system. The Supreme Court is comprised of nine imperfect citizens encumbered with biases and predispositions that inevitably seep into decisions affecting all aspects of society. Their opinions—whether majorities, concurrences, or dissents—are important and must be analyzed. They encapsulate viewpoints, both the eloquent and the ugly, vital to keep society moving forward. Even one articulate dissent is enough to lay the foundation to change history and the law in the highest court of the land.
The Court is insulated from the political whims of the electorate in that Justices cannot be voted off the bench. However, the Court can and must be held accountable for its decisions through we the people engaging in candid discussion and thoughtful analysis of those decisions. Therefore, in this blog, we’ll be doing our part to explore the decisions (and dissents) that so profoundly impact our society.