When the Supreme Court says something is or isn't constitutional, what does that really mean? What are the effects, or lack thereof, of their decisions? And what do we do if we don't agree with what they say?
Today Linda Monk, author of The Bill of Rights: A User's Guide, walks us through four times in US History that the Supreme Court was not the be-all-end-all decision maker.
Here are some links to shows we reference in the episode:
Transcript
Nick Capodice: All right, here we go. Check check check check check.
Hannah McCarthy: All right, let's do it.
Archival: The Supreme Court has reached a decision on the landmark Roe v Wade case. The ruling is on a case called Dobbs v Jackson Womens Health Organization.
Archival: Supreme court decision legalizing same sex marriage across the court's.
Archival: Conservative majority ruled today that a public high school football coach in Washington state [00:00:30] has the right to pray on the 50 yard line.
Archival: The nine Supreme Court justices ruled racial segregation in publicly supported schools to be unconstitutional, declaring that it denied equal opportunity.
Nick Capodice: Hannah let me ask you this. In our six years of making this show, how many episodes do you think we have done that center on the Supreme Court?
Hannah McCarthy: Wow, uh, a lot. A whole lot [00:01:00] of episodes. At least two dozen on landmark Supreme Court cases. And we've done some on precedent, several on the court's interpretation of laws and amendments. Uh, we did the shadow docket, right. And not to mention a whole bunch of shows on just how stuff works on the court. .
Nick Capodice: Yeah we give them a lot of airtime. And of course we do. Right?
Hannah McCarthy: Of course we do. They are the ones who interpret the Constitution.
Nick Capodice: And we care deeply about what they say. We track their calendar, we refresh [00:01:30] websites on days. They hand down decisions. As an example, right now, this first week of March 2020, for the whole nation was waiting to hear how the court would rule in Trump v Anderson. This is the case that decided whether the state of Colorado could determine Donald Trump's eligibility to be on the ballot in Colorado in light of potential disqualification under the 14th amendment.
Hannah McCarthy: And to catch anyone up who missed the verdict. On March 4th, the court ruled in a per curiam opinion that's an [00:02:00] unsigned opinion by the court as a whole, not one justice that states did not have the power to declare a candidate ineligible, that only Congress has that power. But, Nick, what does this have to do with this episode? What are we talking about?
Nick Capodice: Well, um, we're talking about this. So the whole nation was waiting to hear how this decision was going to come down. And when it came down, some people were overjoyed and some people were furious. But here's the question what [00:02:30] really happens when the Supreme Court rules on something? What are the limits of their power, of their decisions? And why is it that Americans who have strong opinions on how a court should rule, just give up if it doesn't go their way?
Linda Monk: When we have these intense issues of disagreement among Americans at large, a lot of times it's easier to let the court take the, um, the [00:03:00] hit. You know, it's like, well, you know, of course we disagree about the Supreme Court has ruled. And so we must obey sometimes. Yes. Sometimes no.
Hannah McCarthy: I know that voice.
Nick Capodice: You do indeed. That is the Constitution lady, constitutional scholar, JD, author of many books, including the required Reading for Civics 101 listeners, the Bill of rights, A User's Guide. This is Linda Monk. And unlike most episodes, where we email scholars [00:03:30] to ask if they'll talk about a certain topic, she wrote us with a question.
Linda Monk: The idea that I submitted to you for this show was that throughout American history, particularly in the areas where we had the most fundamental disagreement, it's never been a Supreme Court ruling that actually made the change.
Nick Capodice: You're listening to Civics 101. I'm Nick Capodice
Hannah McCarthy: I'm Hannah McCarthy.
Nick Capodice: And today we are answering Linda Monk's question. In [00:04:00] short, can the Supreme Court save us from ourselves?
Hannah McCarthy: All right. How are we going to do this?
Nick Capodice: We're going to do this in four acts, hannah. Linda told me about four moments in history where bad laws were on the books. And I mean unequivocally bad laws. There aren't, like, two sides to consider in any of these cases. But we're talking about four problems today. And in each one, we're going to see how the Supreme Court was or was not involved in fixing them.
Hannah McCarthy: And [00:04:30] how far back are we starting here?
Nick Capodice: we're going to start in 1798 with the Alien and Sedition Acts. You know about these?
Hannah McCarthy: I do a little bit. These were passed during the John Adams administration, right?
Nick Capodice: Yes, they were indeed. And they were a set of four acts.
Linda Monk: The alien part or the alien act gave more power to regulate immigration. That's a debate we're still having today. The more controversial part of it, the Sedition Act, basically made it a crime to criticize the government. [00:05:00]
Nick Capodice: The fourth act, the Sedition Act, said, quote, writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, end quote, could be punishable by a $2,000 fine and two years in jail.
Hannah McCarthy: Did anyone actually go to jail for this?
Nick Capodice: They did. Some did go to jail. More people were fined than went to jail. Uh, lots of newspaper owners in particular. President John Adams was a Federalist and his veep was Thomas Jefferson, [00:05:30] who was not a Federalist. He was a Democratic-Republican. And this new sedition law was designed to punish pro Jefferson newspapers that criticized the Adams administration.
Hannah McCarthy: The Federalists also had their own newspapers, right?
Nick Capodice: Yeah, they did. And funnily enough, the Sedition Act extended to criticism of the president or either Chamber of Congress, but not the vice president. You are allowed to scandalize and say bad stuff about T-Jeff all the livelong day, but you say something about [00:06:00] Adams, you are gonna get it. One guy in particular got fined. He was drunk at a parade in Newark, new Jersey, and a cannon went off and he shouted, and I'm going to paraphrase here, I hope it hits Adams in his backside.
Hannah McCarthy: How much was he fined?
Nick Capodice: He was fined 100 bucks.
Hannah McCarthy: All right, that's a funny story and all. But this is I mean, to me, it's a blatant violation of the First Amendment, is it not?
Nick Capodice: Yeah. You'll get no disagreement from me on that one Hannah. And the American people [00:06:30] thought the same thing.
Linda Monk: And it was a sitting member of Congress who was jailed under the Sedition Act as a newspaper editor. When you think of anything that goes contrary to what we think of as the First Amendment today to jail a newspaper editor for criticizing the president, and while he's a sitting member of Congress, he's in jail. Um, that's that's pretty extreme. And yet that was what, uh, the law was passed seven years after the First Amendment had been ratified. So if [00:07:00] we want to think about, well, what did the Founding Fathers think about free speech and free press? Well, we don't as long as you agree with us, you're fine.
Hannah McCarthy: That sounds like a tough pill for originalists to swallow.
Nick Capodice: Yeah, like they were there when it was written in the first place. And I'd like to think that if Congress passed an act like that today, it would be deemed unconstitutional in a heartbeat.
Hannah McCarthy: Is that what happened back then? How did the Supreme Court rule on it?
Linda Monk: Actually, [00:07:30] the court didn't rule at all that that's what was so controversial about it. That's why it was such a test, because you had one political party, even though George Washington had said, beware of the baneful effects of the spirit of party, uh, he pretty clearly lined up with what became the Federalists. Jefferson and Madison, with what became the Democratic Republicans. And when you had the presidency, the Congress and the Supreme Court, all [00:08:00] dominated by one party, the Federalist Party. And then the Congress passed the Alien and Sedition Acts with the express purpose of curtailing dissent and power amongst the opposition party. Who are you going to call?
Hannah McCarthy: Who are you going to call? Who can you turn to when something is not fair and the Supreme Court is entirely dominated by your political enemies?
Nick Capodice: Well, [00:08:30] you can go local instead of federal. Virginia and Kentucky passed state resolutions criticizing the acts. These resolutions, by the way, were secretly written by Jefferson and Madison. But that is not what kills this unconstitutional law.
Linda Monk: But the ultimate remedy, again, was the election, the election of 1800. What many people say the second American Revolution, um, where the people voted clearly for um, [00:09:00] Jefferson and therefore Madison's point of view.
Nick Capodice: This was the campaign issue of 1800. And because of it, Adams ends up being a one time president.
Hannah McCarthy: Okay. One down. This is a point for the people since the court did not get involved. What's number two?
Nick Capodice: Number two does involve the Supreme Court, and it involves the Cherokee people in 1830. Now, these are people who had been here for thousands of years, [00:09:30] and at this time they were an independent nation in the US.
Hannah McCarthy: Okay. This is the concept of tribal sovereignty. Indigenous nations govern themselves.
Nick Capodice: Yes. And as we see over and over and over and over and over again in US history, that does not stop the government from taking their lands.
Linda Monk: And that's been done by treaty, by conquest, often unfairly and in total disrespect of human rights. Under the legal system that we have today, though, [00:10:00] Congress is the only one that can regulate relations with the Indian nations. And in 1830, um, you had Georgia, which really was just this little bitty speck of land, uh, along the Atlantic, but it claimed everything to the Mississippi River, and that included Cherokee land and Chickasaw land and Choctaw land. And, um, and so Georgia is saying, hey, you know, Massachusetts got to run out all the Native Americans who live there, [00:10:30] who talks about the Delaware anymore. They were once the greatest tribe. Um, so now it's our turn. You know, we're just doing what Massachusetts did.
Nick Capodice: Georgia tries to force the Cherokee to move. And the Cherokee people, under the leadership of Chief John Ross, get a case to the Supreme Court. And their argument is, Georgia, you cannot tell us to move. You're a state.
Linda Monk: You're not the federal government. The Constitution protects us, makes it to the Supreme Court twice. Ultimately, the [00:11:00] Supreme Court rules that no, Georgia does not have the authority to try and regulate the Cherokee possession of the land. But who does? Congress? That doesn't mean Congress can't act. Congress passes the Indian Removal Act that says, okay, we're going to make all these provisions for removing the, uh, Native American tribes that will agree by treaty to do it. How does that affect Cherokees? Well, they have [00:11:30] a there's a fraudulent treaty and the Treaty of New Echota. And under that fraudulent treaty, which Congress quickly or the Senate quickly ratifies. It's okay. Well, we've got our treaty. See this little piece of paper? And even though John Ross, the chief of the Cherokees, has a petition, you can see it at the Native American Museum. 15,000 signatures from cheer. This almost the entire Cherokee Nation that [00:12:00] have signed saying no, no, no, no, no, these were unlawful people that claimed to be representing the Cherokee Nation, but they're not.
Hannah McCarthy: Just to clarify, this treaty, which was fraudulent, was Congress's legal justification for the forced removal of Native Americans for the Trail of Tears. Yeah.
Nick Capodice: And Linda wanted to make it clear this was controversial. A lot of people in Congress were opposed to this.
Linda Monk: Just so people know, we tend to look at these things as like fait accompli, like, [00:12:30] oh, you know, well, everybody was so racist way back when as opposed to today. And of course, we would have done it differently. Well, I hope so. But even at the time in the debate over that fraudulent treaty, there were senators who were saying, this is fraudulent. It didn't. It passed, but just barely. So it wasn't this uniform. Oh, well, white supremacy, although that certainly was part of it. But there were definitely [00:13:00] senators on the other side saying this is a fraudulent treaty. We can't do this.
Hannah McCarthy: In this case. The Supreme Court ruled the right way. They said that the Cherokee people were sovereign and Georgia could not force them to move. Yeah.
Nick Capodice: And then President Andrew Jackson and Congress said, well. Actually, no.
Nick Capodice: We are [00:13:30] going to take a quick break before our last two explorations of Supreme Court powers and limitations. But just a quick note if you're a fan of Civics 101, we are made at a public radio station, and that means we rely on the public to exist and the public is You. Please consider donation and whatever amount you wish at our website civics101podcast.org.
Hannah McCarthy: We're back. You're [00:14:00] listening to Civics 101, and today we are talking with Linda monk about the ramifications, or lack thereof, of Supreme Court decisions.
Nick Capodice: We are indeed Hannah. And this third example certainly does have ramifications. Uh, quite possibly the most dire ramifications in US history. This is viewed by many as the worst decision the Supreme Court ever made.
Hannah McCarthy: If this is the case, I think it is.
Nick Capodice: it is, it's Dred Scott v Sandford.
Hannah McCarthy: We have a whole episode on this case link in the show notes. For anyone who wants a [00:14:30] deep dive, I really recommend you check it out.
Nick Capodice: And the thing Linda wanted to point out when it comes to this case is that there was an actual person who was begging, beseeching the Supreme Court to save us all from ourselves, and that person was President James Buchanan.
Linda Monk: I really credit the book, 1857, here for, for, um, doing the historical research and the primary source documents to show that the sitting president of the United States [00:15:00] was writing letters to Supreme Court justices saying, fix this for us. You know, fix this for us. Slavery is going to divide the country. He knew we were on the verge of a civil war. Just fix it for us. Eventually they do fix it. And boy, do they fix it. They fix it so bad that they declare the compromise of 1820 totally unconstitutional.
Nick Capodice: The 1820 compromise. It's also called the Missouri Compromise. [00:15:30] That was the legislation that determined whether new states added to the Union were going to allow the practice of slavery or not, and that compromise was completely nullified in the wake of the Dred Scott decision.
Linda Monk: What the holding is there is that slaveholders have property wherever they go, wherever they want to go. And there's nothing Congress can do to take that away, ever, uh, which totally upsets the political applecart then, because [00:16:00] then there is essentially no such thing as a slave or free state if it's come beyond the 13 original.
Nick Capodice: The justice who wrote the opinion, Roger Taney, ended it by saying that no human being of African descent was or could ever be a citizen of the United States.
Linda Monk: Never, ever. So not only did they not solve the Civil War, avert a civil war, they created a civil war because there was no political compromise left.
Nick Capodice: Dred [00:16:30] Scott, one of the worst Supreme Court decisions in US history. I would like to wrap up our exploration today with one of the most lauded good decisions in US history, and it's another one we've done an episode on Brown v Board of Education, 1954. This is the decision that ended racial segregation in schools.
Linda Monk: You know, the Supreme Court did a unanimous decision. Um, [00:17:00] we tend to celebrate that. There's also evidence that the reason it was done at that time was because of the Cold War, and we didn't want to look bad compared to Russia. And so it's, you know, it's like, well, how did this magically happen? Did the did suddenly nine white men suddenly had a revelation? Well, kind of, um, maybe not. Um, so it's important that, that we see those decisions for [00:17:30] what they are, but not more than what they are. Remember the the response to Brown versus Board of Education in the state of Virginia was massive resistance, announced massive resistance. And it took and still takes. I mean, that's that's my point is it doesn't stop, um, doesn't stop those values, um, still have to be reinforced. And frankly, white parents have abandoned public schools. The public schools today are [00:18:00] more segregated than they were at the time of Brown v board.
Hannah McCarthy: I remember hearing that a school district in Mississippi finally received orders to desegregate in 2016.
Nick Capodice: Yeah, the decision in Brown v Board was to desegregate, "with all deliberate speed". And each school district did indeed get there on its own schedule.
Linda Monk: I'm a child of the desegregation decisions, and as a white [00:18:30] child, it was the best thing that ever happened to me, because I wouldn't have been allowed in any other way to get to know my African American neighbors and fellow students, and it changed me. It changed what I had taught, been taught. It changed what I believed. And I'm a better person because of. But it didn't come because of the Supreme Court. You know, it started because of the Supreme Court, but it came because people like Representative [00:19:00] John Lewis, who put himself physically. I mean, when you talk about a warrior who physically puts himself in the way of a police baton as given multiple concussions, that kind of moral integrity.
Hannah McCarthy: So Nick, Linda wrote in and asked to explore whether the Supreme Court can save us from ourselves. [00:19:30] So what does she think cannot? No.
Linda Monk: No, a resounding no. It never has saved us from ourselves. It may have pushed us along a certain trajectory. Uh, in some cases, we would support other cases. I mean, there's there's no question that Dred Scott directly caused the Civil War. Not that we wouldn't have gotten there anyway, but that decision [00:20:00] by itself made the Civil War inevitable, made it despite a president lobbying for Congress to just fix it for us.
Nick Capodice: And to be clear here, Linda is not saying, let's get rid of the Supreme Court. She's a doctor of law. But what she is saying, to the best of my understanding, is that nine people deciding whether something is or is not constitutional has no bearing on what is actually in our hearts, right or wrong. And [00:20:30] a Supreme Court decision is not this perfect adamantine thing that can never be changed in the future.
Linda Monk: Let's go back to Chief Justice John Roberts. He likes to refer to the Supreme Court and the justices as umpires. All right, well, let's take that metaphor of an umpire. The umpire makes a ruling that's good for that game, but doesn't mean you never come back and play another game. It doesn't mean, uh, that you think they were right or [00:21:00] that they were wrong. It just that was the ruling.
Hannah McCarthy: Does Linda suggest anything for people who disagree with a ruling? Like if we don't go to the court for a remedy, where do we go?
Linda Monk: You know, my point is that the Constitution itself solves that problem through the amendment process. If the people disagree with what the court has ruled, they can. If it's a question of constitutional power, they can pass an amendment to the Constitution, which has happened [00:21:30] several times specifically to overturn Supreme Court decisions. All right.
Hannah McCarthy: But people don't really propose amendments. Congress does.
Nick Capodice: I asked Linda about that, and she reminded me of something I think that I sometimes take for granted. Hannah, she wrote to me, quote, the people are presumed to act through their elected leaders, which is how we got the current 27 amendments. But who persuades the legislators, if not we the people?
Hannah McCarthy: I [00:22:00] mean, I do suppose that is the hope, right? That's the ostensible role. They are our representatives. It's in their name. They represent us.
Nick Capodice: Yeah. They do. Maybe that's one of the lessons for today, right? Don't wait for the courts to decide something. Contact your local representative. Tell them what you want. Last thing I want to add in today. It's been about five years, Hannah, since you and I first interviewed Linda monk about the Constitution. And when she finished talking with me this week, she [00:22:30] ended by saying a refrain of the exact same thing she said all those years earlier. And I'm going to end with that today.
Linda Monk: My fundamental belief is the same as Judge Learned Hand, that we place our hopes too much in laws and courts and constitutions. These are false hopes. Believe me, these are false hopes. Liberty lies in the hearts of men and women. And when it dies, there no constitution, no law, no court can save [00:23:00] it. And I think that's fundamentally the the lesson of our history. And frankly, that gives me hope because it means that we ultimately can change things.
Nick Capodice: Well, that is enough for today. I guess that's enough. I guess that's enough. Thank you, Linda, for, [00:23:30] amongst other things, always being our friend. This episode was made by me Nick Capodice with You Hannah McCarthy. Thank you. As always, our staff includes senior producer Christina Phillips and executive producer Rebecca Lavoie. Blue Dot Sessions, Ikimashu Aoi, HoliznaCCO, Konrad Oldmoney, Baegel, Christina Anderson, Lennon Hutton, Fabian Tell, The New Fools, Spring Gang, and the Brooklyn Composer who has saved me from myself, Chris Zabriskie. Civics [00:24:00] 101 is and of right ought to be a production of NHPR, New Hampshire Public Radio. Josiah Bartlett, New Hampshire, says yay!