This summer, the Supreme Court will rule on three cases that can potentially change the social landscape of America for a generation. The court will decide on the fate of The Voting Rights Act of 1965, The Defense of Marriage Act, and affirmative action. Each of these will have historical significance. The court has not always been on the right side of history, though. Here is a list of six Supreme Court cases where the court was clearly on the wrong side of history.
1. Dred Scott v. Sanford (1857)
In arguably the worst decision ever, the Supreme Court ruled that black people were not entitled to the same right of citizenship as white people. After Dred Scott, a former slave who had lived in the free state of Illinois and free territory of Wisconsin, had moved back to the slave state of Missouri, it was found that he should be returned to slavery. Scott appealed to the Supreme Court seeking his freedom. The court ruled against Scott and also ruled that the 1820 Missouri Compromise was unconstitutional, making slavery constitutionally permitted throughout the entire country and its territories.
The Declaration of Independence clearly states that “all men are created equal,” however this decision found that all blacks, regardless of whether they were slaves or free, were not and could never become citizens. Chief Justice Roger Taney argued that "it is too clear for dispute, that the enslaved African race were not intended to be included, and formed no part of the people who framed and adopted this declaration."
Taney was a staunch supporter of slavery. In his majority opinion, he wrote that blacks were “an inferior order and altogether unfit to associate with the white race”, that “they had no rights that the white man was bound to respect,” and “the Negro might justly and lawfully be reduced to slavery for his own benefit.” Taney wrote that blacks were not citizens, and could not claim the “rights and privileges” of citizenship even if their masters took them to free states. Taney went on to say that Scott and by extension all blacks were bought, sold, and treated as ordinary articles of merchandise and traffic therefore had no standing to sue.
The American Civil War broke out four years later in 1861.
2. Plessy v. Ferguson (1896)
This ruling upheld separate but equal and established “apartheid” as the law of the land. The ruling would stand until overturned by Brown v. Board of Education in 1954, and its descendant Jim Crow would remain the de facto law of the South until the Civil Rights Act of 1964. Plessy was a bi-racial man who refused to move from a “blacks-only” railway car in Louisiana. The Supreme Court ruled that Louisiana’s Separate Car Act did not contradict the equal protection clause of the Fourteenth Amendment. The court declared that the Constitution guaranteed legal but not social equality. Although the opinion itself does not contain the language “separate but equal," legal segregation was the de facto effect.
Judge John Marshall Harlan was the sole dissenting vote. In his dissenting opinion Harlan wrote “Our Constitution is colorblind, and neither knows nor tolerates classes among citizens.”
Plessey’s civil disobedience was a forbearer of the tactics immortalized by the civil rights movement of the 1950’s and 1960’s including the historical and legendary Montgomery Bus boycott when Rosa Parks refused to give up her seat.
3. Pace v. Alabama (1883)
In Alabama, interracial marriage was a crime punishable by two to seven years of hard labor in a state penitentiary. Tony Pace, a black man, and Mary Cox, a white woman, challenged the law. The Supreme Court ruled that the law was constitutional because it was “race-neutral” and therefore did not violate the Fourteenth Amendment. The ruling was finally overturned in Loving v. Virginia (1967).
4. Korematsu v. United States (1944)
The ruling determined that Japanese internment during World War II was constitutional. Chief Justice Hugo Black wrote that the need to protect American from espionage outweighed the individual rights of Fred Korematsu and the civil rights of all Americans of Japanese descent.
The Court refused to address all the other civil rights violations that marked the internment of Japanese Americans during World War II. Korematsu also lost a later ruling that established that individual rights are not absolute and could be suspended during wartime.
The Supreme Court case is poignant reminder to anyone that is not concerned with the extent to which the last two administrations have become to scale back on civil liberties as a reaction to the war on terrorism. The Authorization for Use of Military Force grants the president the right to use all "necessary and appropriate force” against any person or country that was involved with the attack on September 11, 2001, including American citizens. The National Defense Authorization Act allows the military to detain United States citizens indefinitely without charge or trial for mere suspicions of ties to terrorism. The Patriot Act allows for warrantless wiretapping and electronic surveillance under the Foreign Intelligence Surveillance Act.
5. Bowers v. Hardwick (1986)
Bowers issued a ruling that sex between gay and lesbian partners was a crime. The court actually narrowed a Georgia sodomy law that found all oral and anal sex to be illegal. All sodomy laws were eventually invalidated by the Supreme Court decision in Lawrence v. Texas (2003).The ruling was made at a time when the court was deeply homophobic and concerned with rulings on privacy matters. Legislating morality from the bench, Chief Justice Warren E. Burger wrote “to hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”
This ruling gave the FCC regulatory authority over free speech over broadcast media. The case established that certain words, famously George Carlin’s Seven Filthy Words, were not suitable for television. The court held that although the words were not obscene they were indecent. And subject to restriction. The original seven words included “s*it, p*ss, f*ck, c*nt, a*s, b*tch, and tits”, but during his comedy routine Carlin would also include “c*cksucker, motherf*cker, turd, fart, and tw*t.” Since then some of the words, i.e., b*tch, tits, turd, fart and a*s, have pretty much come off the list but the ruling is still in effect. The ruling of course does not apply to subscription-based, non-broadcast media e.g. cable TV and satellite radio.