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What was SCOTUS up to?                                                                                     Print this essay

Posted at: Apr/30/2016 : Posted by: mel

Related Category: Historical Insights, Politics & Gov, The Law, Watching America,

Listening to lawyers speak beyond the fictional versions of television can be extremely boring and confusing. The most prestigious place in the United States for a lawyer to argue a case is before the United States Supreme Court. Acting as presumed experts on the Constitution, the Supreme Court therefore is tasked to evaluate judicial appeals, new laws and other legal content with respect to ensuring it does not exceed the existing content of the Constitution. Despite such a narrow job description, there are a number of key rulings made by the Supreme Court of the United States (SCOTUS) that seem to make little or no sense and can easily be classified as just plain terrible.

For anyone who is familiar with the politics and bureaucracy of the United States it often appears to be extremely complicated. This complexity is actually by design. The founding fathers had the foresight to establish a government with power divided between three branches, Legislative, Executive and Judicial. This complex system is intended to inhibit any one branch or individual from accumulating too much power. One of the redeeming consequences of this complexity is that radical change is metered in favor of adopting policies that have had time to become widely reviewed and thereby more palatable. One of the key components of the judicial branch of government is the Supreme Count.

Article III of the Constitution establishes the federal judiciary and Section-1 states that “The judicial Power of the United States, shall be vested in one supreme Court…” Section-2 of Article III in the Constitution establishes the jurisdiction of the Supreme Court. Effectively, the Supreme Court’s job is to review other cases or laws and evaluate them with respect to their constitutionality. As narrow as this job description sounds, there are a variety of “accepted” way to interpret the Constitution. Some justices believe the founding documents should be read only in the context of the events and times they were written. Other justices believe their interpretation should be adjusted for an evolving society.

Defining a judicial ruling as terrible is obviously subjective. For the purposes of this brief examination the criteria for making the list is either a ruling that lacks any obvious Constitution rationalization, or proved to have a detrimental impact with serious repercussions; obviously in the opinion of the author.

Dred Scott v. Sanford (1857): Conservative or Liberal, this makes the list. The Dred Scott decision stated that African Americans, whether free men or slaves, could not be considered American Citizens. The rule undid the Missouri Compromise and barred laws that would have freed slaves. Most historians believe that the Dred Scott decision virtually guaranteed that there would not be a peaceful or political solution to the American challenge of slavery. The courts published opinion even includes a ridiculous list or “parade of horribles” that would appear if Mr. Scott were recognized as a citizen. The list of “horribles” included Africans Americans being able to take vacation, hold public meetings and exercise free speech rights. Fortunately, this ruling is now confined to the history books, but the scope of its damage is undeniable.

Plessy v. Ferguson (1896): The post-Civil War reconstruction era was a tough time in some part of America. Despite the pain, there were modest gains made with respect to segregation and civil rights. The Plessy v. Ferguson decision included the now infamous phrase “separate but equal” upholding the segregation laws that existed in some southern states. This ruling effectively provided the rationale for what is now referred to as the Jim Crow laws. Obviously, trying to hold back the hands of time and resist change only make the inevitable change more volatile when the vessel finally breaks open.

Buck v. Bell (1927): The court declared in an 8-1 decision that forced sterilization for those with intellectual disabilities was legal and “for the protection and health of the state.” Justice Holmes wrote the decision stating that "society can prevent those who are manifestly unfit from continuing their kind" and ended the opinion by declaring that "three generations of imbeciles are enough." The notion of a slippery slope is paramount here, there was no clear definition of intellectual disability and is therefore open to subjective interpretation. The possibilities for using this historical ruling in other parts of society including generations of repeat criminal offenders is daunting. It should be noted that this decision has not been over turned. One would be hard pressed to find a Constitutional rationalization for this decision, but clearly fear can spark unusual responses.

Helvering v. Davis (1927): This case was heard when the Court faced what is likely the worst crisis of its history. Unfortunately, the case is more political than legal, but has become a decisive legal precedent.

During the peak of the Great Depression, Franklin Roosevelt's New Deal had become immensely popular with the public and was supported by a lopsidedly Democratic Congress. Only the Supreme Court thwarted Roosevelt with four conservative justices. They held that the Tenth Amendment of the Constitution prohibited the United States (the Federal government) from taking powers not delegated to it by the people as represented by the States. Under this argument, the New Deal was invalid. The other Justices looked to clauses in Article 1, Section 8 which empowered Congress to impose and collect taxes “to pay the Debts and provide for the common Defense and general Welfare of the United States."

FDR’s Administration feared that the Court would rule that the Constitution did not permit federal tax-financed old-age insurance program. While the Social Security bill was in Congress, the Court invalidated the Railroad Retirement Act which was similar to Social Security. To counter this, the authors of the bill took key detailed language out and physically separated the tax from the implied benefits so it would not look an insurance program. While this late rewrite was taking place, the Supreme Court invalidated the National Industrial Recovery Act, the Frazier-Lemke Farm Bankruptcy Act, the Agricultural Adjustment Act, the Municipal Bankruptcy Act and a New York state law setting minimum wages for women.

Frustrated by the Court, but inflated by his 1936 landslide, Roosevelt asked Congress to enact a bill empowering him to appoint up to six additional Justices bringing the court to fifteen. In self-preservation the Supreme Court began surrendering and upheld a revised Frazier-Lemke Act, the National Firearms Act, the Railway Labor Act and a Washington state minimum wage law.

In 1936, George Davis, a stockholder of Edison Electric Illuminating Company of Boston, sued, alleging that the Social Security tax was unconstitutional, and asking that the company be kept from paying it. After much contesting, the IRS Commissioner Guy Helvering asked that the case be heard by the Supreme Court. Social Security was extremely popular in Congress and in the country. If the Court killed Social Security, the threat of reviving the “packed Court” loomed. To avoid the strong arm tactics of FDR at the peak of his power the Court ruled that the legislation was a "true taxes, their purpose being simply to raise revenue . . . available for the general support of Government." Ultimately this separated the tax from the buildup of a fund to pay old-age annuities. The court’s opinion specifically stated that "a scheme for compulsory insurance invalid under the Tenth Amendment," and goes on to say "Whether or not the Act does provide an insurance plan within the accepted meaning of the term insurance' is a doubtful question."

The court ducked the issue of how valid the tax was and under duress managed to save itself. Ultimately, the precedent establishes that the Federal Government can impose taxes as they deem and not have a specific and attached plan for how the funds are allocated. This is the legal basis for the funding of nearly every federally backed social safety net program and the rationale for justifying the gap between taxes taken in, and the spending on these various program. It is important to note that the Federal Government is not supposed to be in the investment business. If all collected revenues were set aside for future insurance, the IRS would ultimately own all the Wall Street banks, therefore collected social security taxes have to be spent in real time on immediate needs…catch-22 anyone.

Kelo v. City of New London (2005): The “Taking Clause” of the 5th Amendment allows for the taking of private property for public benefit. This law has been used many times for the creation roads, schools and utility corridors. In this case the court ruled that the City of New Loudon could take and condemn private property and give it to a large corporation. The City of New London’s argument focused on the fact that the corporation would create a mall on the property and “pay more taxes” which would benefit the public more than the meager property taxes Kelo was paying. Community redevelopment is important to keeping towns vibrant along with the increased taxes, but the real winner was the development corporation at the expense of private property rights. This application of eminent domain by the courts benefited some a lot more than others setting a precedent for private corporations leveraging public eminent domain actions for private profit. It is difficult imagine if there is now a limit to how the “Taking Clause” can be implemented.

Citizens United v. FEC (2010): This single ruling by the Supreme Court in 2010 has had a great impact on the face of American politics in a shorter period of time than any other event in U.S. political history. The justices' ruling said political spending is protected under the First Amendment as a form of free speech as long as it was done independently of a party or candidate.

The case was based on film critical of Hillary Clinton funded by a conservative non-profit organization name Citizens United. The court’s ruling toppled the boundaries of election influence by establishing that organizations and corporations “are people” with the added “freedom of speech.” The premise that Supreme Court relied on was the statements in oral arguments that the groups “would be truly independent of the candidates themselves.”

Unfortunately, a $1000 donation to a Political Action Committee is far more likely to draw the attention of the related candidate than a $10 donation. The result has been a deluge of cash poured into so-called super PACs – particularly single-candidate PACs, or political action committees – which by independent review appear only nominally independent from the candidates they support. What’s more, the legal protections for corporations mean much of this spending, known as "dark money," never has to be publicly disclosed.

Beyond the chambers of the court is the obvious concern about the corrupting influence of somebody making a million-dollar contribution directly to the candidate; the notion that the candidate can’t be corrupted by a million-dollar contribution that they know about to a super PAC that’s advocating solely on their behalf is obviously naive.

The Supreme Court made a good-faith effort to promote transparency and prevent corruption in its Citizens United ruling. The contradiction between the court’s stated desire for transparency with its 8-1 ruling and its definition of corporations as people protected by the First Amendment created a loophole that campaigns and PACs of all persuasions are all too happy to use to their advantage.

The result is an opportunity for a small group of wealthy donors to gain even more influence over the electoral process and influence candidates once they take office. Of the $1 billion spent in federal elections by super PACs from 2010 -2015, nearly 60 percent of the money came from just 195 individuals and their spouses, according to a report from the Brennan Center. Clearly, money talks; thanks to Citizens United, supporters can make the maximum $5,200 donation directly to a candidate, then make unlimited contributions to single-candidate super PACs ensuring their view is well funded.

Obviously, the Republican Presidential race of 2016 is also a testament to the notion that sometimes large and well-funded PACs will still not control the outcome of a contested race.

There are other cases that could make this list including Baker v. Carr (1962), National Federation of Independent Businesses v. Sebelius (2012). Depending on one’s personal leanings, political views, or a host of other more personal factors, cases such as Roe v. Wade (1973) and a host of similar opinions could easily make a much more expanded list.

For this review, done without a legal background, the emphasis on what constitutes a bad decision by the court has been more about the detrimental impact or the weak Constitutional foundation for the decision as published.

The checks and balances written into the U.S. Constitution more than 200 years ago have proven remarkably robust. Regardless, society changes continuously and thereby finds new ways to test the Constitution and our structure of governance and law. Fortunately, by the sheer size and variety in our society the related governance has become a big and slow moving entity. On the other hand, the impact of a court ruling is intended to have an immediate impact for the benefit of those making the argument.

All of the aforementioned cases (and many not listed) had a broad and definite impact on America. Unfortunately, if a ruling by the Supreme Court ultimately is seen to be detrimental, it can be many generations before the damage is undone.

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Henry Ward Beecher
It is not the going out of the port, but the coming in, that determines the success of a voyage.
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