A limited-run series where I review three books about the Supreme Court of the United States, exploring its historical and ideological conflicts, and the transformations it wrought upon law and society.

This is the story of three Supreme Court cases.  The three cases illustrate the real political power exercised by the Supreme Court and the concept of stare decisis, more commonly known as “binding precedent.”  Furthermore, the reader should see this section as a kind of intellectual exercise.  Legal legitimacy coupled with cultural acceptance creates a powerful cocktail that can make overturning legislation much more challenging.

The Court established itself as an independent branch of the United States government in Marbury v. Madison, 5 U.S. (1 Cranch) 137(1803).  This allowed the Court to operate as “final arbiter” in constitutional disputes.  It announced to the Executive Branch that it wouldn’t act as the President’s handmaid.  The Supreme Court is not a rubber stamp to the President’s ever-growing imperial power.  (Congress has that job, at least in terms of its War Powers.  Since Vietnam, Congress, in acts worthy of the Heaven’s Gate cult, seems perfectly comfortable with acts of self-castration.  Besides, Congress engages in more pressing acts: seducing lobbyists, having affairs with staffers, and scanning wealthy families for trophy wife material.)

Coupled with its task as final arbiter, the Supreme Court utilizes the concept of “binding precedent.”  In an ideal circumstance, the Supreme Court does not legislate from the bench.  The Court either upholds or overturns the case based on precedent.  A Justice can’t just say, “This is wrong, don’t do it.”  A specific piece of legislation has to be deemed unconstitutional.  Previous Court cases, other laws, and the Constitution itself must support the constitutionality of the decisions.

While Congress writes laws to be signed into law by the President, the Supreme Court interprets the law.  But interpretation is a hollow exercise if it is not enforced.  These three cases show how the dance between constitutional interpretation and legal enforcement become a balancing act between branches.  Occasionally, these balancing acts spill over into public conflicts and duels.

Korematsu v. United States, 323 U.S. 214 (1944)

Holding: The exclusion order leading to Japanese American Internment was constitutional.

Majority: Black, joined by Stone, Reed, Douglas, Rutledge, Frankfurter
Concurrence: Frankfurter
Dissent: Roberts
Dissent: Murphy
Dissent: Jackson

Korematsu is a lingering black eye on the American legal system.  It remains a damning indictment against the Executive excesses of FDR and the judicial spinelessness of his appointees.  Alternately, Korematsu shows a patriotic Supreme Court upholding the will of the Executive in times of war against a ruthless enemy dedicated to brutality, terror, and warmongering.  What do you think, Dear Reader?

The case, like the segregated armed forces and the alliance with Stalin, opens any number of vulnerabilities within the otherwise hagiographic treatment of the Greatest Generation.  No amount of nostalgia or selective memory will disprove that our leaders and our citizens had feet of clay.  The Second World War was not as black-and-white as the opposing forces in the Lord of the Rings.  Reality, to quote Herman Melville, had more ragged edges.

The case itself upheld Executive Order 9066 that legalized the internment of Japanese-Americans.  War hysteria following the Japanese attack on Pearl Harbor coalesced with decades of anti-Asian sentiment among Americans of European descent.  While Japan had spies and other intelligence agents working towards infiltration of the US mainland, Executive Order 9066 involved tackling a surgical problem with a sledgehammer.  Instead of targeting suspicious foreign agents working for enemy powers, it gave law enforcement the ability to arrest and imprison native-born US citizens.  It invalidated constitutional protections offered to any citizen born in the United States to those who looked like the enemy.  (Arizona’s recent anti-immigration law also reflects this racially motivated hysteria.  Illegal immigration is a problem, especially in Border States, but turning every “Mexican-looking” person into a potential felon is a stupid solution.)

A closer analysis of the decision reveals the potential time bomb that would later explode in Brown v. Board.  As Feldman writes in Scorpions,

With the war on, Black was disinclined to stand up for equality, even though his liberal, Catholic colleague Frank Murphy condemned the decision as pure racism.

Because the Korematsu case focused on a military order, Justice Jackson became torn and issued an enigmatic dissent, trying to balance “uphold[ing] a military order would distort constitutional law; striking it down would inappropriately second-guess military authority.”  As opposed to Robert Jackson’s concept of judicial pragmatism, Justice Felix Frankfurter wrote a concurrence stating that the internment program “is not be stigmatized as lawless because like action in times of peace would be lawless.”  Frankfurter believed in judicial restraint and opposed all measures to legislate from the bench.  Frankfurter’s assessment opened up the possibility for repealing segregation with the reasoning that the internment was necessary because it was wartime.  In peacetime, similar unfair treatment based on race was unconstitutional.

Brown v. Board of Education of Topeka, 347 U.S. 483 (1954)

Holding: Segregation of students in public schools violates the Equal Protection Clause of the Fourteenth Amendment, because separate facilities are inherently unequal. District Court of Kansas reversed.

Majority: Warren, joined by unanimous

During the Fifties and Sixties, the Warren Court oversaw the greatest expansion of civil rights and individual liberties in recent memory.  In Brown v Board of Education, Earl Warren wrote a unanimous opinion striking down segregation in schools.  It was an act whose time had come.  The Court followed in the footsteps of President Truman’s executive order desegregating the armed forces.  Truman’s actions were relatively easier than what the Court faced.  Unilateral action could be taken, since Truman acted as Commander-in-Chief of the armed forces.  Desegregating schools was a trickier business.

The long winding road of Brown v. Board culminated in the Supreme Court’s unanimous decision.  The unanimity of the Court gave the decision extra moral and legal heft necessary for such a radical social change.  Scorpions relates how the Court reached a unanimous vote; routinely holding over the decision until the next year and then having it reargued.  Only until Chief Justice Vinson, a proud Southerner and pro-segregationist, retired and with Justice Robert Jackson on his deathbed, were the circumstances right.

With stare decisis, the Court used Korematsu as a precedent to strike down Plessy v Ferguson.  In oral arguments, evidence was presented that showed that “separate but equal” did not mean what it said.  The races were separated but far from equal.  Everything from racist stereotypes in pop culture to redlining to legal disenfranchisement were engineered to keep African-Americans from getting any ideas about racial equality.  Plessy v Ferguson would not stand, since it was based on false pretenses.  Korematsu came into effect because of the reasoning involved.  The Japanese-American internment camps were created as a temporary measure.

Once the War ended, the camps would lack any basis for existence.  Since the US Government knowingly created the camps as a racist containment strategy, the same could be said for legal segregation.  Segregation contained “uppity blacks.”  With the US triumph in the Second World War against racist tyranny, it seemed a tad hypocritical to defend racist social engineering.  In addition, segregation was used as a canard to discredit American democracy.  Justice Robert Jackson understood this, because he had jousted with Hermann Goering during the Nuremberg Trials.  In the Fifties, the Soviets and American Communists consistently used segregation as an example of American capitalist evil.  The United States also had the awkward experience of explaining to African diplomats and dignitaries why hotel clerks and restauranteurs were treating them like shit.  Despite popular opinion to the contrary, especially but not exclusively, in the South, that the time had indeed come to rectify this perversion of democracy.

But it wasn’t all smooth sailing and waiting for segregationists to retire or die.  The nine justices battled between striking down school segregation with a unanimous vote and the order to do it immediately.  Like a refrain from a terrible pop song, the Court settled on a compromise.  (Compromises being the go-to solution for America’s self-inflicted race-based problems.)  In exchange for a unanimous vote and to appease stubborn Southerners on the Court, the Court decided to strike down Brown, but for the lower courts to establish their own timetables.  “Gradualism” was the key word.  Unfortunately, gradualism only sounded good on paper.  This opened the door for states to drag their feet or come up with creative legal loopholes.  This led to Southern governors challenging the Supreme Court’s authority, since the Court lacked any enforcement apparatus.  Eventually we get the National Guard escorting little black girls to school and repugnant alternate uses for fire hoses.

The Brethren picks up where Scorpions leaves off.  With desegregation legal and mandatory, it opened up a can of worms for courts to unravel.  If schools were desegregated, does that mean neighborhoods also need to be desegregated?  Do schools have to match the racial ratios of the neighborhoods they serve?  What about bussing?  The challenges associated with desegregation stretch into the Sixties, Seventies, and Eighties.  Even in the Nine, the Rehnquist Court, made up of a conservative and moderate majority, sought to strike down Brown, but with little success.

Rumsfeld v. Padilla, 542 U.S. 426 (2004)

Holding: Habeas corpus petition had been improperly filed in the U.S. District Court for the Southern District of New York, and should have been filed in the U.S. District Court for the District of South Carolina; petition should have named Padilla’s immediate custodian, not the Secretary of Defense.

Majority: Rehnquist, joined by O’Connor, Scalia, Kennedy, Thomas
Concurrence: Kennedy, joined by O’Connor
Dissent: Stevens, joined by Souter, Ginsburg, Breyer

Padilla v. Rumsfeld appears like a culmination of Korematsu and Brown, but is in reality rather disappointing and dangerously inconclusive.  We have the similar themes of rights violation occurring during wartime (Congress keeping its rubber-stamping ability to legislation expanding Executive power in fighting trim.)  In this case, the concept of habeas corpus lay in the crosshairs.

Padilla, an American citizen, was held in the brig and charged as an “enemy combatant.”  The case could have unraveled the Bush Administration’s legal basis for torture, extraordinary rendition, and other authoritarian atrocities committed in the name of liberty and freedom.  (These colors don’t run, just the intelligence and common sense of the American voter.)  In the end, the case was struck down on a technicality, since Padilla should have petitioned the brig’s commandant, not the Secretary of Defense.  Unfortunately, this leaves a lot of questions unanswered and civil liberties extremely vulnerable to Executive malfeasance and whatever psychotic lunacy one can get away with by saying the magic words “national security.”

While Padilla is an unfortunate case, stare decisis and a future Court will have the opportunity to slay the dragon of Executive power run amok.  Since the War on Terror is technically finished, we’ll see how the laws and executive orders issued during those tumultuous years will hold up under judicial scrutiny.

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