One of the other decisions covered in the 12-part series also ranks high on the worst-ever list: Scott v. Sandford, the pre-Civil War decision commonly known as the Dred Scott case that barred citizenship for African-Americans, free or slave. At least three of the other historic cases in the series are also generally viewed as mistakes, and four of the more recent decisions remain somewhat to very controversial despite some degree of acceptance for each.
In all, only one of the featured decisions is universally acclaimed: Brown v. Board of Education, the unanimous Warren Court ruling that outlawed racial segregation in public schools. Whether or not intentional, the series serves to remind viewers that the Supreme Court is far from infallible. “Just as the country has warts and all,” says executive producer Mark Farkas, “the court has those as well.”
C-SPAN deserves major props for the series, telecast on Monday evenings and produced in cooperation with the National Constitution Center. The 12 cases are presented in chronological order, starting with the Marshall Court’s power-grabbing decision in Marbury v. Madison (1803) and ending on Dec. 21 with the still very contentious abortion rights ruling Roe v. Wade (1973).
Farkas, a producer at C-SPAN for 30 years, says the goal of the series “was to be representative of a number of different kinds of decisions the court has made and to be representative of our country’s history.” And the watchword, he says, was to convey the cases in human terms to be fully accessible for a wider audience.
Farkas has no legal training, nor does the program’s host: Susan Swain, C-SPAN’s president and CEO. Swain is joined in each 90-minute program by two experts, typically academics but sometimes practicing lawyers.
For the Dred Scott case, both experts George Washington law professor Christopher Bracey and University of Michigan legal history professor Martha Jones emphasized that Chief Justice Roger Taney was not only morally wrong but historically inaccurate in the court’s main opinion. Taney was wrong, the professors explained, in stating that blacks had never enjoyed citizenship anywhere in colonial America or in post-independence United States.
The experts for the Korematsu case similarly spoke with one voice in condemning the 6-3 decision. Karen Korematsu, who now directs a civil rights institute that bears her father’s name, and civil rights attorney Peter Irons, author of Justice at War, both made clear the ruling was infected with anti-Japanese racism and gave too much credence to the wartime military authorities.
The chosen experts openly disagreed, however, about the court’s decision in Lochner v. New York, the 1905 ruling to strike down a New York law limiting the hours of bakery employees. The ruling gave its name to a 30-year stretch of Supreme Court decisions striking laws regulating the economy in ways favorable to workers and consumers and unfavorable to industry.
Randy Barnett, a Georgetown law professor and author of Restoring the Constitution: The Lost Presumption of Liberty, defended the 5-4 decision on the ground that the New York law was an arbitrary infringement of contract rights. From the opposite side, Paul Kens, a professor of political science at Texas State University and author of Lochner v. New York: Economic Regulation on Trial, echoed the dissenting justices in depicting the decision as motivated by ideology rather than law.
Implicitly, the series underscores the court’s complex relationship with public opinion and the political branches of government. In the Dred Scott case, pro-slavery justices set themselves against advancing anti-slavery forces. In Lochner, the court’s majority aligned themselves with industry and capital as the populist, progressive, and labor movements were gaining strength.
In Dred Scott and to some degree in Lochner, the majority hoped to be settling a conflict that was roiling the nation. Taney thought the decision would settle the slavery issue once and for all. The Lochner majority saw the ruling as a way to limit the zeal of the reform-minded. In both cases, the court misjudged.
The court misjudged in Korematsu and in a second wartime case featured in the series. The unanimous opinion by Justice Oliver Wendell Holmes Jr. in Schenck v. United States (1919) upheld the convictions of Charles Schenck and Elizabeth Baer for distributing an anti-draft pamphlet during World War I. Holmes joined with Justice Louis J. Brandeis in dissenting opinions in the 1920s that laid the groundwork for the more speech-protective approach now established as First Amendment law. Korematsu remains on the books, but the recent decisions in Guantanamo-related cases require some judicial process for wartime detentions.
Still to come are two of the Warren Court’s criminal law rulings: Mapp v. Ohio (1960), the exclusionary rule case, and Miranda v. Arizona (1966), which requires police to inform suspects of their rights before interrogation. In those cases, the court got ahead of public opinion, as it did to some extent in Brown and more so in Roe v. Wade.
The court’s success over time, however, can be seen in the facts that Miranda is now a part of the national culture and Roe’s essential holding survives even if battered. Credit C-SPAN with providing an informative and watchable exploration of how the court formed those successes and its notable failures.
Up next: The Youngstown steel seizure case (Nov. 16).