WIUM Tristates Public Radio

The Law of the Land

Oct 18, 2017

In October, most people look forward to Halloween; as a lawyer, I look forward to the start of a new United States Supreme Court term.  Starting now and working through next spring, the Court will decide over 40 cases. Some of these decisions will have significant effects on the value of our votes, our cell phone privacy, marriage equality, union membership, education for disabled kids, police use of force, transgender rights, deportation and many more issues.

But this is not a new phenomenon. The US Supreme Court has had a significant effect on our country since it first convened in 1790. It heard only 43 cases in its first 43 years, but the Court’s decisions established the framework of the US government.  Most importantly, in 1803, the Court decided that it had the power to judge the actions of the legislative and executive branches of government, a concept that is still alive and well today. Probably the most famous use of this power to date is U.S. v. Nixon (1974) holding that when a special prosecutor subpoenaed information from the President, the President must comply. And several Presidents have complied.

Over the years, the Supreme Court has shaped this country in numerous ways. Sometimes, these nine judges make horrible decisions.

They approved the detention of Japanese-Americans in concentration camps during WWII.  They once held that slaves could never be citizens. They allowed compulsory sterilization of developmentally disabled people, and gave employers power to dictate women’s insurance coverage for birth control.

The Court spent 40 years striking down minimum wage/maximum hours laws and child labor laws as violations of “freedom to contract”.  It refused at one point to allow women to practice law.  It chose a President in 2000 and in 2010 said that corporations were people who had free speech rights that could not be restricted by limits on campaign spending.

The Court has also made some good decisions.  The Court established the Constitutional right to privacy which includes choosing birth control, abortion, consensual sexual acts, same sex marriage, and interracial marriage.

The Court prohibited mandatory prayer and Bible reading in schools, and also protected the religious beliefs of students so they couldn’t be forced to salute the American flag and recite the Pledge of Allegiance.

Gayle Carper
Credit Rich Egger

Free speech has been well protected by the US Supreme Court over the years for news reporters, students,   and all kinds of groups of people with opinions other groups didn’t like.

It gave rights of appointed counsel to criminal defendants at trial. It established the well-known Miranda warnings to choose to remain silent and have an attorney’s assistance during police questioning. It made the criminal court system more honest for defendants by requiring evidence to be disclosed to defendants and by reducing racial discrimination in juror selection.

Sometimes the Court even changes its mind. In 1883, a ban on inter racial marriages was accepted; in 1963 that ban was rejected.  The Court endorsed segregation of the races in 1896 and condemned it in 1954. In 1986 the Court allowed criminalization of some private sexual acts and 17 years later decided that private consensual sex was protected by the Constitution.

What amazes me is how this happens. There are nine people on the court at any one time. It takes only a majority of that 9, or 5 people to make a decision that affects everyone in the entire country.   And we all go along with it- citizens, the other two branches of the federal government and the 50 state governments.  There are a few rogue judges and officials who refuse, but they are removed from their judicial positions or punished, free to run for political office.

Justices are not elected, but are appointed by the President and confirmed by the Senate. They serve on the Court “during good behavior” which means for life or until they quit.

So, we the people have no control over who get to be the 9 judges- sometimes only 5 judges -who make the legal decisions for all of the millions of people in this country. The only thing we can do is to be well-informed on what they decide and to use that knowledge in our political activity with elected officials.

I know that most people do not enjoy studying US Supreme Court cases like I do, but there are many ways to stay informed. There are lots of good summaries of arguments and decisions; NPR is my personal favorite, but there are all kinds of newsletters and blogs that are easy to read and understand.  You can even set up a news alert. Just don’t expect the Justices to tweet.

Gayle Carper is a member of the Macomb City Council and she is a retired attorney and retired Professor of Law at Western Illinois University.

The opinions expressed are not necessarily those of the University or Tri States Public Radio.  Diverse viewpoints are welcome and encouraged.