Next week, the Supreme Court will hear arguments in US v Windsor (the DOMA case) and Perry v. Hollingsworth (Prop 8), and by June they will issue their rulings. In so doing, they will be putting these two cases — and themselves — on one of two lists.

List A:

  • Dred Scott v Sandford – declared that African-Americans were not citizens
  • Plessy v Ferguson – upheld the doctrine of “separate but equal”
  • Korematsu v US – upheld the internment of Japanese-Americans during WWII

List B:

  • Brown v Board of Education – struck down Plessy
  • Gideon v Wainwright – required that poor defendants in state courts be provided with counsel
  • Loving v Virginia – struck down laws prohibiting marriage between people of different races

The cases on List A are widely seen as the most egregious mistakes in Supreme Court history. They catered to fear, prejudice, and discrimination, at the expense of those on the margins of society. They may have been praised at the time, but as the passions of the moment faded, their defects and ill-conceived logic became clear, and the justices who wrote the opinions had their reputations scarred and shattered.

The cases on List B, on the other hand, are considered to be among the finest ever to have been handed down. Setting aside fears and prejudice, the justices stood firmly on the side of those on the margins. Boiling these cases down, the messages of these cases are simple and straightforward: “Separate is NOT equal” said the Court in Brown, “rights are meaningless unless you have the ability to employ them” said the Court in  Gideon, and “discrimination is not a rational basis for marriage laws” said the Court in Loving.

The justices of the Supreme Court are famous for saying that they do not decide cases based on polling or popular opinion. That may be. But these same justices are passionate about history — especially the history of the Supreme Court of the United States. Come June, when they decide Windsor and Perry, they will be making history. But it’s up to them as to whether they will be remembered for a decision like Dred Scott or decision like Loving.

So what will it be, Your Honors? Do we put Windsor and Perry in List A or List B? Historians are waiting . . .

image h/t to Sovereign to Serf – Roger Sayles aka Serfs Up! Used under Creative Commons.