Critical Balance: Supreme Court Weighs Rights and Powers
The first Monday of October is now long past, and the U. S. Supreme Court is once again open for business.
As a political scientist, I spend a lot of time studying the court and the role it plays in our political system. The United States has a government that political scientists call a "constitutional republic." A constitutional republic is a type of democracy, but it is a democracy in which majority rule is balanced by a belief in individual rights -- rights that are enumerated in a constitution.
It's a bit of an oversimplification, but I like to tell my students that the U.S. Constitution strikes a balance between majority rule and individual rights by using the articles (the main body of the constitution) to give power to the government (the majority) and the amendments to limit that power and to ensure the rights of individuals.
Articles I and II of the Constitution lay out the powers of the two popularly elected branches of our government, the Congress and the president. The amendments -- especially the first 10, called the Bill of Rights, and Amendments 13, 14 and 15, called the Civil Rights Amendments -- speak specifically to the limits on government power and to the rights of individuals.
It was James Madison, primary author of our Constitution, who said that when trying to form a government, "you must first enable the government to control the governed, and in the next place oblige it to control itself." By granting power to the majority through its articles, the Constitution empowers the government to control the governed.
In amendments, which state that certain individual rights are inviolable -- regardless of what the majority may think -- the Constitution limits government (and thus majority) power and forces it to "control itself."
The U.S. Supreme Court fits into this picture in an interesting way. Since the branches of government that are popularly elected naturally want to be supportive of the majority that elected them, the role of protecting individual rights falls almost by default into the hands of the court.
Every prominent Supreme Court case is known by the names of its plaintiff and defendant -- such as Smith v. Jones. In almost every instance, the plaintiff (the person named first) is an individual and the defendant is a unit of government or a government official. The defendant might be the state of Illinois, a public university, a local government agency or the United States itself.
Almost all of these cases involve an individual alleging that a unit of government has taken an action that threatens one of the rights promised to that individual by an amendment to the Constitution. It's actually that simple.
A few well-known cases illustrate what I mean. Brown v. the Board of Education of Topeka -- the famous school desegregation case -- involved a Kansas individual, Oliver Brown, and his daughter Linda. Brown alleged that by denying his daughter permission to attend her neighborhood school, which was restricted to white children, the Topeka school board was denying the "equal protection of the laws" promised her by the 14th Amendment. The court, in a unanimous 9-0 vote, agreed.
In Roe v. Wade, a woman named Linda McCorvey (identified by the court name "Jane Roe," a female version of "John Doe") alleged that the state of Texas had violated her right to privacy by prohibiting her from getting an abortion.
The "Wade" in the case was the district attorney for Dallas County, the county where Ms. Roe had been prosecuted. In a complicated opinion, the Court, by a 6-3 vote, agreed and cited Amendments 4, 9 and 14 as conferring an implied right to privacy that the Texas statute had violated.
Texas was also the defendant when Geoffrey Johnson claimed that the state's flag-burning law violated his First Amendment rights to free speech. This was a difficult case for the court -- one in which it reached a decision with which it was clearly uncomfortable.
In the final analysis, the court concluded that political speech was clearly what the Founding Fathers had in mind when they crafted the First Amendment. They decided that flag-burning was a form of expression, and that political speech -- even when it expresses beliefs that are hateful -- is protected. They ruled for Geoffrey Johnson.
Decisions Often Unpopular
Just as there is a sameness to the pattern of Supreme Court cases -- individual versus government -- there is a sameness in public reaction to major court decisions: They are almost always unpopular.
At first glance, that might seem odd, but actually it is perfectly logical. When the court rules for an individual against a government unit (a unit that usually represents majority opinion), it makes sense that most people will disagree. Because of that, Supreme Court decisions are inherently controversial.
Court cases that represent wins for individuals and losses for the majority can't help but be unpopular. Coupled with their unpopularity is a misconception that the Supreme Court decisions have a liberal bias. After all, it was the court that desegregated the schools, permitted abortion, gave criminals "too many" rights, stopped school prayer, etc.
The reality is that individual rights are nonpartisan. Despite what pundits may tell you, the court's job is to interpret the Constitution and to protect individual rights in light of that Constitution.
Those who accuse the court of liberal bias ignore the fact that six of the nine current justices are Republicans, appointed by Republicans. (It was seven until President Obama nominated Justice Sotomayor.) Furthermore, every chief justice since 1953 -- Warren, Burger, Rehnquist and Roberts -- has been a Republican.
If Supreme Court Justices are liberals, they are well disguised. We in the majority may not like it when the court rules against us and in favor of individuals with whom we disagree, but we shouldn't ascribe ideological motives to these decisions. To do so ignores the facts, and it ignores the party affiliations of the court's Justices.
It is hard to say which cases will be decided this term (the court will only agree to hear 90 or so cases out of the nearly 10,000 cases that have been appealed to it).
What is easier to predict is that if and when the court rules for an individual against a governmental unit representing the majority, most of us won't like it. We should remember, though, that the court's protection of individual rights ultimately protects all of us -- and makes us the constitutional republic that we are.
The Supreme Court remains our best guarantee that, as James Madison wanted, our government will be obliged to "control itself."
Dr. John Dempsey is president of Sandhills Community College.
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