Overcoming Historic Decisions by the Supreme Court

August 2024 Imperfect Union

Well, what a year it has been in the last few months. Two and a half months ago, President Joe Biden challenged Trump to the debates. Since then, Trump was convicted of 34 felonies, the Supreme Court issued its decision on presidential immunity, the debate happened, and well, you know the rest.

Personally, I’ve recorded my first book podcasts (listen to the Axelbank Reports episode), recorded the audiobook, and started my new job as Executive Director of the George Washington Presidential Library. More updates below. Friendly reminder, especially for some new faces, my pre-order campaign for signed books with a 30% off discount ends on August 22.

It’s easy to get lost in the deluge of news, but I wanted to circle back to the Supreme Court decision as promised. I think it is entirely inconsistent with the intent of the framers of the Constitution. They agreed on almost nothing, but they explicitly rejected a king. The whole point of the revolution and the subsequent efforts to create a new government was to forge a system in which no one was above the law. Everyone could be held accountable for their actions, even the most powerful government official.

My opinion has nothing to do with contemporary politics or the coming election – I believe that standard should apply to all past and future presidents regardless of party. But I’m not a lawyer, so I’m not going to get into the legal intricacies of the decision. If you want to read more, I highly recommend this article from Lawfare.

Instead, I want to explore three cases in the history of Supreme Court jurisprudence and how they were overturned or undone: Dred Scott v. Sandford, Plessy v. Ferguson, Korematsu v. United States. All of these cases directly address race and represent terrible moral failings. Obviously, the immunity decision is not race-based and nor does it deny the humanity of some citizens. But I think these cases are instructive because they are almost universally viewed as wrongly decided. They show how hard it is to overcome a bad decision, but also the ways that it can be done.

Dred Scott v. Sandford (1857):

In 1857, the Supreme Court ruled that enslaved people were not citizens and thus “could not expect any protection from the federal government or the courts.” It also ruled that Congress had no authority to prohibit slavery in a federal territory. I’ve written about the political fallout from that case here.

As I wrote in December, the case was immediately reviled by many Americans, but Congress was stuck. It couldn’t pass legislation overruling the decision by a standard majority because the Court had just made clear it would strike that down.

Instead, the law was effectively on the books until the 13th Amendment, which abolished slavery, was ratified on December 15, 1865. The 14th Amendment, ratified on July 9, 1868, stated that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”

In other words, to overrule Dred Scott—probably the worst Supreme Court decision of all time—Congress had to pass two constitutional amendments abolishing slavery and guaranteeing citizenship to individuals born in the United States. Of course, we know that citizenship remained highly imperfect and scattered for many decades.

There is a reason so many historians immediately thought and wrote about this case in July and it’s because we knew its implications. This article by Sean Wilentz is one good example.

Plessy v. Ferguson (1896):

The Court held in Plessy that the Constitution intended to make the races equal under the law, but that separate treatment did not mean Black Americans were inferior. The Court upheld the Louisiana law mandating separate railway cars for Black and white passengers.

On May 17, 1954, the Court issued Brown v. Board of Education, explicitly overruling Plessy, saying, “in the field of public education, the doctrine of "separate but equal" has no place. Separate educational facilities are inherently unequal.” Notably, the majority decision, delivered by Chief Justice Earl Warren, explicitly mentions Plessy in the decision. I recently listened to Eisenhower v. Warren by James F. Simon and it explores all the work behind the scenes to secure the unanimous Brown decision.

Sixty years after Plessy, the Court officially recognized its error. It took complete turnover, several times over, and the arrival of new generations coming into office during World War II. They came from many states with different experiences with race and Jim Crow laws that enforced legal segregation. They were making decisions in the wake of World War II, when Black veterans had served with valor. Finally, they existed during the Cold War. The Soviet Union and its allies used segregation and Jim Crow laws as evidence of the supremacy of communism. To put it another way, the world of 1954 was very different than 1896, and we cannot separate decisions from their broader context.

At the time, some justices were still wavering and unwilling to overrule the former decision. By many accounts, Warren’s masterful manipulation and leadership, as well as a very careful decision, secured their vote after many years of deliberating. New faces and changing circumstances can lead to the rejection of Supreme Court cases, it just often takes a really long time.

Korematsu v. United States (1944):

On February 19, 1942, ten weeks after Pearl Harbor, President Franklin D. Roosevelt signed executive order 9066, authorizing the Secretary of War to remove people of Japanese Ancestry from military areas and surrounding communities. Over 120,000 people were relocated. In Korematsu, the Court upheld the detention of Japanese Americans as “a military necessity” not based on race.

The Court was uncomfortable with the case. Many of the justices opposed internment and questioned the evidence presented for “military necessity,” but they were also close to FDR and unwilling to rebuke the president in war time. In The Court at War, Cliff Sloan argues that the justices held the decision until they heard the war department planned to announce an end to integration anyway. (I hope I’m remembering that correctly, it’s been a minute since I listened to the book, and I don’t have a physical copy so I can’t check. Let’s hope my reading comprehension is solid!).

The dissenting justices pulled no punches. Justice Black wrote, “all legal restrictions which curtail the civil rights of a single racial group are immediately suspect” and “Pressing public necessity,” he wrote, "may sometimes justify the existence of such restrictions; racial antagonism never can.” Justice Robert Jackson wrote, “Korematsu ... has been convicted of an act not commonly thought a crime," he wrote. "It consists merely of being present in the state whereof he is a citizen, near the place where he was born, and where all his life he has lived.”

Many Americans were immediately uncomfortable with the decision as well. The images of internment camps didn’t exactly fit with the argument that the US was fighting a war for democracy and many of the detainees were born in the US. On June 25, 1946, President Harry Truman signed Executive Order 9742 ordering that Japanese Americans returned to their homes.

In 1983, a pro bono legal team reopened the case on the “basis of egregious government misconduct in falsifying the record on military necessity.” On November 10, 1983, Judge Hall Marylyn Patel overturned Korematsu’s conviction in the same courthouse as the original case.

In 1988, Congress passed the Civil Liberties Act of 1988. The law apologized for internment, acknowledged the injustice of internment, and provided $20,000 to every person held at wrongfully incarcerated. Not until 2018, however, did the Court officially declare that the decision “was gravely wrong the day it was decided, has been overruled in the court of history, and — to be clear — has no place in law under the Constitution.”

In this case, the wrong was almost immediately spotted and presidents took legal steps within a few years to change the order. Lawyers and other cases undermined the legal scaffolding upon which the decision was made, but it took decades for official recognition by the Court.

Books:

Just a reminder: I haven’t read (or haven’t finished) the books below. They’ve caught my eye, but I’m not necessarily vouching for them. I share published reviews in the links below (as well as on Goodreads and in my Instagram stories - see book review highlights).

Because of everything in the last month, my reading is a little slow. Repeating a few in case you are behind too!