Wednesday, July 13, 2022

TCR: The High Court’s ‘Self-Inflicted Wounds’: A Backward Look

Matthew T. Mangino
The Crime Report
July 13, 2022

Was the Supreme Court decision last month overruling Roe v. Wade one of the worst decisions in the 233-year history of the Court?

 The ruling in Dobbs v Jackson Women’s Health Organization has been described as such by many judicial commentators and experts in the middle of the spectrum, and a large segment of the U.S. public seems to feel the same way.

 As this year’s session drew to a close,. the Court’s approval rating was at 25 percent and falling, according to a poll last month.

It may be small comfort. But Dobbs does have stiff competition for the “worst-ever” title.

Let’s start with Dred Scott v. Sanford, a ruling handed down in 1857. Chief Justice Charles Evan Hughes, who served on the court from 1930 to 1941, called Dred Scott the Court’s great “self-inflicted wound.”

The decision has been described by many scholars as the most egregious example in the history of the Court of applying a judicial solution to achieve a desired political result. Sound familiar?

Dred Scott was a slave, whose owner took him to Illinois where slavery was illegal.  The owner later took Scott back to Missouri, a slave state.  Scott sued for his freedom, arguing once he was brought to a free state he was no longer a slave.

His case ended up before the Supreme Court, which issued a 7–2 decision against Scott. In an opinion written by Chief Justice Roger Taney, the Court ruled that people of African descent “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”

The Court held that black men and women, free or slaves, were not American citizens. There is no question today that the Supreme Court got it wrong.

Yet, that is the same Constitution that Justice Samuel Alito said did not provide for abortion and the same constitution that contains the Second Amendment which Justice Clarence Thomas recently said prevents New York state from regulating the carrying of a concealed gun.

Forty-two years later, in another embarrassing moment for the High Court, a seven-justice majority  ruled, in Plessy v. Ferguson, that racial segregation laws did not violate the U.S. Constitution as long as the facilities for each race were equal in quality, a doctrine that came to be known as ”separate but equal.”

In 1892, Homer Plessy, a mixed-race resident of New Orleans, violated Louisiana’s Separate Car Act of 1890, which required “equal, but separate” railroad accommodations for white and non-white passengers.

Plessy was charged with boarding a “whites-only” car. The Louisiana Supreme Court refused to throw out the charge against Plessy, his  case ended up before the U.S. Supreme Court.

In its 1896 decision, the Court decided 7-1 that the Louisiana law did not violate the Fourteenth Amendment. Noting that although the Fourteenth Amendment established the legal equality of whites and blacks,  it did not and could not require the elimination of all “distinctions based upon color.”

It took more than half a century to puncture a gaping hole in that decision.

In 1954, the Court ruled in Brown vs Board of Education that the “separate but equal” doctrine is unconstitutional in the context of public schools and educational facilities. Although the Court did not specifically overrule Plessy, it relegated the Court’s reasoning to the trash heap of jurisprudence.

But Plessy was not the only example of the Court’s racism.

In the aftermath of Japan’s attack on Pearl Harbor, the military was charged with coordinating the defense of the West Coast, and ordered “all persons of Japanese ancestry” to relocate to internment camps.

Fred Korematsu, a young Japanese-American refused to comply and challenged the order on the grounds that it violated the Fifth Amendment. In Korematsu v. United States, Justice Hugo Black, writing for a 6-3 majority in 1944, held that the need to protect against espionage by Japan outweighed the rights of Japanese-Americans.

Black wrote that “Korematsu was not excluded from the Military Area because of hostility to him or his race,” but rather “because the properly constituted military authorities … decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast” during the war against Japan.

The decision has been criticized as “an odious and discredited artifact of popular bigotry”  It was effectively overturned in 1983.

But even in a more “enlightened age,” the Court’s rulings raised questions.

In 1989, the U.S. Supreme Court decided in Stanford v. Kentucky that juveniles—16- and 17-year-olds—could be executed if convicted of first-degree murder. The decision was so out of step with the idea of dignity and decency, that it was overturned 15 years later.

In overturning Stanford, the Court cited evolving standards of decency as evidenced by a national consensus against executing juveniles.  The court determined a national consensus existed by the number of state legislatures that had outlawed juvenile executions.

A CNN poll conducted in May immediately after the leaked Roe v. Wade draft opinion, found that 66 percent of Americans said they did not want the Supreme Court to completely overturn Roe v. Wade.

 So much for the influence of a national consensus.

And it could get worse. Next year will tell us if the hard-right turn continues.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly and George. P.C. and the former district attorney of Lawrence County, PA. He is the author of The Executioner’s Toll. You can follow him on twitter @MatthewTMangino or contact him at 

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