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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.
16 Comments
Clear Enough: Are you placing any bets?
Ask me after the oral arguments.
I think they’ve already proven that they don’t care how history views them or the court. Whether that’s because they believe their ideological co-conspirators will be able to control the hagiography of the recent and future times or not remains to be see. I believe they are true believers who don’t give two shits how they are viewed by anyone except their Owners, the fascist, rich oligarchs who benefit from their opinions.
I would add to List A: Bush v Gore, Citizens United
And to List B: Griswold v Connecticut, Lawrence v Texas, and the ACA decision.
It is in the last decision, upholding Obamacare in almost all parts, that Justice Roberts showed how craven and interested in his legacy he is: tossing aside principle and policy, as well as the interests of The Owners and The Right, he joined the majority in a sneaky way that allowed him to write the opinion and keep the Court’s legitimacy for another day. I fully expect both these cases to be decided 6-3 in similar circumstances.
The ACA among one of the finest ever???
I disagree. Finding consitutional the right of the government to force it’s citizens to become customers of large, for profit, corporations, is not at all fine in my view. Nor is it very constitutional IMO.
I almost always agree with you but I guess have found one thing I’ll have to disagree with ya on, albeit with respect. Very much agree with the rest of your additions.
Peterr what I fear is that Scalia and Thomas at least think that all the cases you and I think are good are bad and vs a versa.
They read history, you say? Then I recommend “A People’s Guide to the French Revolution: The Sharp Sound of Free-Falling Freedom.”
How do you know they read history of SCOTUS. The radicals strike me as having no acquaintance with history, only another enforcer arm of an increasingly totalitarian empire.
I don’t think that most of the Oligarchs really care very much about gay rights. It’s not something that directly effects how rich and powerful they are. If they aren’t gay themselves, it’s just a useful wedge issue that distracts part of the population from economic issues. Oboma is mildly supportive of gay rights, at least some of time, becuase it helps him politically. I doubt he would be if many of his campaign contributors really objected. So I think it’s possible that Roberts will say to himself, “This is an issue that really doesn’t matter to my masters, and I need to maintain the illusion that my court is legitimate, so I’ll vote with the gays.”
the roberts court already has Citizens United and Lilly Ledbetter decisions on List A. What’s another one or two among bigots?
so I guess you’re against all or most taxation, and all or most government purchases because guess what – YOUR tax dollars (assuming you pay some) make you a customer of Black Water mercenaries, Lockheed Martin, Northrup Grumman, charter schools, and oh yea, all the services you will surely someday buy with Medicare as a customer of from large corporations.
What are Medicare and Social Security – FORCED savings. Do you think they’re unconstitutional too?
Your confused dude! Comparing a mandated $1500 premium to be paid under fear of tax penalty, fucking coercion, to a tax exempt health insurance corporation (BCBS)or for profit insurer which probably control a dominant share of the market, geographically, state by state, is not comparable to a payroll deduction for “benefits,” not fucking “entitlements” from a single payer system
How about a Wall Street tax and reigning in the fucking oil whores, and controlling monopolies! Oh yes! Healthcare services for people, not fucking servitude to another corporate Lobby, state based health insurers and providers, most tax exempt?
Oldfatguy has it right! Teddy has it right, except for the Mandate!
The protections afforded ACA protect people. The mandate protects monopolies, that was the deal!
Well, first of all, Medicare and Social Security are taxes, not savings. People pay into it even if they don’t eventually qualify for it. If it were savings, then even those that didn’t qualify for it would get “their” money back.
Secondly, when the government takes my dollars and then pays a private contractor to do something, then to me that’s not the same as forcing me to purchase something directly from them.
And I fear the precedent it set. If we can be forced to purchase anything from anyone, what’s next? Next time the auto industry is in trouble rather than a government bailout we can just be forced to purchase a car?
I believe Social Security and Medicare and putting bids out for private contractos is constitutional, and I believe forcing citizens to be customers of for profit corporations is unconstitutional. And if it isn’t, then it should be IMO.
I posted in more detail on Teddy Partridge’s thread on the SCOTUS and same gender marriage, but I will repeat some of it.
I wish I could be more optimistic about this SCOTUS, but I can’t. I have more hope for a federalism (aka “states’ rights) argument under the tenth amendment as to DOMA, than I have for an argument about an individual right to same gender marriage under either the Equal Protection Claude or the Due Process Clause of the Fourteenth Amendment.
None of the SCOTUS decisions as to race are on point with same gender marriage issues. Even an alleged “originalist” like Scalia is unable to deny that the 13th, 14th and 15th amendments to the Constitution of the United States were intended to protect African Americans from discrimination by states. That is an indisputable historical fact (and, at that, look what they seem ready to do to the Voting Rights Act).
It is also very unlikely that a true originalist (as opposed to lying Scalia) would find that the members of Congress or the ratifiers of the 14th amendment in the 1860s thought they were forcing states to recognize same gender marriage.
Rather than looking at either the infamous Dred Scott decision (or Plessy v. Ferguson), versus cases like Brown v. Bd. of Ed and Loving v. Virginia, we need to recognize that the relevant cases are the SCOTUS cases on privacy, sodomy laws, etc. Even then, my only hope as to a SCOTUS decision on an individual right to marry is Kennedy, a 76 year old presumably hetero Republican.
My best hope is for a finding that it should be left between individuals and their respective states, under the 10th amendment, as a federal right to regulate marriage was unheard of in 1789. That won’t give immediate relief to anyone in a state that outlaws same gender marriage. However, it will at least remove the yoke of DOMA from same gender couples in states that have recognized same gender marriage.
ACA did not uphold Obamacare in almost all parts.
The SCOTUS can decide only what comes before it properly. Obamacare in almost all parts was never before the SCOTUS. Therefore, the SCOTUS had no ability, in that one case, to decide anything about almost all of Obamacare.
What was before the Court in that case: the constitutionality of (1) the individual mandate and (2) the constitutionality of forcing states to either expand Medicaid, as ACA detailed, or give up all their federal Medicaid money.
Thanks to Justices Roberts, Ginsberg, Breyer, Kagan and Sotomayor, the Court decided that the feds can penalize individuals for failing to buy
Not only health insurance, but just about anything.
Thanks to Justices Roberts, Scalia, Thomas, Alito, Kennedy, Breyer and Kagan, the Court decided that the feds could not force the states to expand Mediaid or give up all their federal Medical money.
Both decisions were heinous.
P.S. Except for the two specific parts of Obamacare described in my prior post, the SCOTUS decided nothing about ACA, a bill that was over 2000 pages.