INTRODUCTION
Today’s blog is Part One of several devoted to learning how the Supreme Court of the United States (SCOTUS) has done its job poorly or well over the past 250 years. There are always winners and losers. I will highlight the good in SCOTUS wherever I can.
We voters can learn how this stuff works! We can increase the power of our voting by learning how politics actually works--and avoiding being deceived by political manipulation from shallow, carefully constructed and powerful campaign slogans.
The Constitution and Bill of Rights contain only about 1100 words, but these two documents have designed and fostered a durable United States of America. Along the way, SCOTUS has produced over 25,000 Court decisions ranging from the simple to the very complex. The Court has made a complete reversal in law only about 150 times.
Democracy is a never-ending struggle of citizens within local, state, and federal governments to get more of what they do want and less of what they don’t want. This living, dynamic, process functions according to laws written by other citizens we collectively call public officials. The important phrase “living dynamic process” means something which constantly changes and progresses, or regresses, recovers successfully and adapts, or dies. Often the need to make changes is scary and disruptive.
Referring to democracy as a game is not insulting. Instead, we are using a solid analytical framework for understanding how something complex works. This respects the inherent difficulties of understanding people, politics, and democracies. The mathematical framework of game theory was launched in 1944 in the book Theory of Games and Economic Behavior, by John von Neumann and Oskar Morgenstern. Von Neumann’s brilliance and his practical ideas contributed greatly to America’s success in World War II. Game theory is an extensive academic field with a wide range of applications.
BUT DON’T WORRY ! We won’t be using any math in these blogs. We will carefully use verbal concepts to label the “moving parts” in SCOTUS and describe how those parts interact to produce SCOTUS decisions. We will look at the reasoning processes of the Justices. We will try to understand what led to some of the unfortunate and controversial SCOTUS decisions.
Although politics is an absolutely necessary, sometimes honorable, and often disgusting occupation, hating and avoiding politics won’t help us. But by understanding the gamesmanship of the political process, we can minimize our political distress and maximize our constructive political participation.
Many of the words and phrases in political talk, come from the competitive language of card games, board games, and sports such as the hugely popular games of baseball, and football. Competition naturally begets conflict along with the eventual glory of success or agony of defeat. Examples of competitive phrases are:
“I can’t even get to first base!” Or, “What you just accomplished for yourself was a real home run!”
Opening move in tick-tack-toe, checkers, or chess.
Later in the game, “I have no move, you win.”
A person’s actions can be described as out of bounds or having stepped over the line. "That's illegal!"
Enjoyable games often involve competition in which only one person or team wins. Relevant strategies include: exploiting your opponent’s weak points and/or making the best use of your own strong points. The foundation for a surprise attack is hiding your intentions from your opponent so he can’t foil your efforts.
Most proposed legislation stimulates some political opposition such that, “Getting this bill passed will be a real fight!”
KEY CONCEPTS IN HOW SCOTUS WORKS
The sociological concept of ROLES (for example, teacher acts differently from student and principal acts differently from teacher or student) is necessary for interpreting why people are authorized to some things but not others.
Our current Chief Justice is John Roberts. In his 2005 confirmation hearings he was asked by Senator Schumer what sort of justice he might turn out to be. John Roberts made several points:
That he did not have a political agenda but was committed to thorough examination of the cases, being open-minded to the views of his colleagues, and making decisions on the rule of law without “fear or favor.”
He said, “Judges and Justices . . . are like umpires [in baseball]. They don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire.” He added that, “I will remember that it’s my job to call balls and strikes, and not to pitch or bat” (as found in Zirin, page 43, 2016).
Professional judges, whether in sports or SCOTUS, must keep their thoughts, well-controlled emotions, and actions exclusively in the judge/umpire role. As we learn more about SCOTUS history, we will see striking examples of Justices who made poor verdicts while violating their judicial role or by allowing biases and political distractions to tip the scales of justice.
Roberts used an analogy to highlight the important role of a baseball umpire; and this is easy enough for even kids to understand. He employs this umpire image/concept to define that as a SCOTUS Justice, his role would not be making law but deciding what the law says when applied to something much more complex than baseball, namely a Federal Law case in the Supreme Court. Baseball and football games are completely finished in a single day and become a game in history—talked about but not replayed. But SCOTUS decisions and written opinions continue in play for decades and centuries [for example Marbury v. Madison].
Probably, most American adults know next to nothing about the separation of powers. Only 56% of Americans can name the three branches of government and it’s unlikely they could also articulate the limited role of a judge; but, they might be able to show understanding by learning Justice Robert’s analogy.
The three coequal branches of United States government cause a healthy and stabilizing balance of power:
The Executive Branch is made up of the current President, his staff, and the thousands of permanent government workers. Like a boss of a large company, the President’s job is to supervise, hire and fire, and insure the successful operation of the government.
The Legislative Branch (also called Congress) is made up of the House of Representatives and the Senate. Each Representative in the House represents about 700,000 citizens ! In the Senate, each State and their citizens are represented by two senators.
The Judicial Branch is The Supreme Court of the United States (referred to with the acronym SCOTUS). Way back in 1803 in the case Marbury v. Madison the first Chief Justice defined the role of the Supreme Court. Most generally important is Judicial Review, which means that SCOTUS is the highest authority for deciding what the laws say, including what’s in the Constitution of the United States. SCOTUS (and lower federal courts) can, when asked, review both new and old laws and Executive actions to determine whether they violate the Constitution.
The Legislative Branch makes the federal laws. Federal laws define the rules and regulations about how government works; the federal laws must comply with the Constitution, the Bill of Rights , and any Amendments.
The Executive Branch puts into operation and supervises the federal laws created by the Legislative Branch. The president along with his staff are often considered to be the most powerful of the three branches.
The Judicial Branch (SCOTUS) is the highest and final court in America. Below the level of SCOTUS there are 94 Federal District courts and 13 Federal Appeals Courts. SCOTUS has the job of insuring that federal laws and state laws don’t violate the Constitution. SCOTUS can declare a law unconstitutional and therefore not enforceable. The Supreme Court does not make laws; however, a few of its legal decisions might appear to be law making.
WHAT CAN BE LEARNED FROM THE FAMOUSLY “BAD” SCOTUS DECISION, DRED SCOTT V. SANFORD (1857)
Dred Scott, a slave, was taken by his owner to a free state and a free territory; Scott’s slave wife and two daughters were with him. Subsequently, the new owner of Scott and his family moved to the slave state of Missouri. Scott had reason to believe that he should have become a freed man because he had previously been in a free state and territory for four years. In 1846 he filed suit in Circuit Court [Federal] but lost. Scott then appealed to the Supreme Court.
In the book, Great Decisions of the U.S. Supreme Court, the authors state, “On March 6, 1857, in the single most controversial decision of the nineteenth century, Chief Justice Roger Brooke Taney announced the 7-2 decision of the Court” (Harrison and Gilbert, 2003). [This valuable book contains 16 important and well-written summaries of SCOTUS decisions; it’s interesting, it’s hard to put down, and makes learning very satisfying.]
In the course of my blogging over the past year, I have read a lot about slavery, race, and overcoming the effects of slavery and racism. Roger Taney supposedly had a good reputation before writing the majority opinion in Dred Scott v. Sanford; after that case, he was often strongly condemned. I too felt the Taney court’s finding was horrible. That’s understandable from our modern viewpoints 166 years later.
However, I learned two things which moderated my thoughts and feelings:
I understood Justice John Roberts’ analogy and statement that, “They don’t make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role.”
And I read the 19 synopsis pages of the Dred Scott case in the Great Decisions book. Chief Justice Taney clearly discussed the relevant issues and referenced the federal law and the rather complex case history. He made reference to his and the Court’s role in the case: “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or law-making power [that is, the Constitution and other federal and state laws]” (Harrison and Gilbert, 2003).
I found no fault with Chief Justice Taney’s logic. He thoroughly navigated complex laws of high personal impacts—State, Federal, and Territory laws.
Finally, Taney’s final opinions benefited from having read the two dissenting opinions. Justices Benjamin Curtis’ dissent was 67 pages. Reportedly, the Curtis dissent was quite persuasive and prompted Taney to add almost twenty more pages to his majoritarian opinion. In the other dissenting opinion, from Justice John McLean, he wrote, “In the argument, it was said that a colored citizen would not be an agreeable member of society. This is more a matter of taste than of law.” That is a profound statement ! For more information go to: https://housedivided.dickinson.edu/sites/teagle/texts/dred-scott-case-1857/
SUMMARY
We have discussed:
(1)
The dynamic, never ending struggle of people wanting to get more of what they want and less of what they don’t want. Such struggles go in and out of equilibrium, heating up and cooling down. The Civil War broke out in 1861 after increasing tensions between the North and South over slavery. Some histories believe the Dred Scott decision of 1857 accelerated the onset of the Civil War.
(2)
We focused on the importance of distinguishing the roles of the players in a competitive game. And, thinking about politics and government as a game is recommended. Politics is typically a divisive topic and can best be discussed and worked upon by avoiding intense emotions. Emotions routinely interfere with rational thought processes; emotions altar one’s underlying priorities. By abstracting politics to competitive games, irrelevant details can be cleared out of the way so the "moving pieces" are more visible, which facilitates analytic understanding.
(3)
I noticed no fault in Chief Justice Taney’s logical reasoning in his majoritarian opinion in Dred Scott v. Sanford. I felt strong negative emotions reading, not due to Taney’s legal analysis, but from what he described and reported of the thinking, feeling and actions of pro slavery legislation. As a Justice writing about law, he was right in saying, “It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws.”
To read about American government, we must be educated about how to read! Formally stated, we must separate the content from the process and keep an intellectual boundary line between them.
But, if we ever wanted to legislate changes in the law, we would have to set a clear goal; and we would have to get political and generate emotional commitments from allies to get the votes to change the laws. The first term of the Clinton administration is (1) an example of how this is very successfully done and (2) a nitty-gritty story of the high stakes drama (The Agenda: Inside the Clinton Whitehouse by Bob Woodward, 1994).
WHAT’S COMING UP THE NEXT BLOGS
I will use the 2010 Citizens United v. Federal Election Commission as a takeoff point for discussion of how bias, prejudice, elitism, and lack of common sense in SCOTUS can damage democracy.
For references, see the relevant page on the powertomyvotes.com website.
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