Presidential Election 2008:
THE SUPREME COURT

By Alan Shapiro

To the Teacher

The selection of nominees to the Supreme Court is one of a president's most consequential actions and often one of the most controversial. The three student readings below include: 1) an introduction to Court interpretations of constitutional principles; 2) the impact of national, social and cultural conditions on Court rulings in four racial cases; 3) an overview of today's Supreme Court--including "strict constructionism," "judicial activism," and what the presidential candidates have said about future appointments.

Teachers may also find useful the following lessons, which are available in the high school section of www.teachablemoment.org: "Race, the 14th Amendment & Our Schools," "Separation of Church and State: Four Case Studies," and "Affirmative Action and the Courts."

Student Reading 1:
Interpreting the Constitution

"John Roberts could probably walk through any Home Depot in the nation unnoticed. Barack Obama or Hillary Clinton-chaos in the bathroom-vanity aisle. John McCain-autographs in power tools. But the chief justice of the U.S. Supreme Court could likely shop for a Phillips screwdriver and most people wouldn't look twice, even though he may be one of the most powerful people in America. Or at least one of the nine."
--Anna Quindlen, "The 2008 Bench Press," Newsweek, 5/12/08

Can you name any of the other eight?

Many people can't, and yet the unelected nine members of the Supreme Court have the power to decide such crucial questions as:

• Does the Constitution support affirmative action?
• Is capital punishment among the "cruel and unusual punishments"?
• Should a woman have the right to an abortion?

The Constitution does not usually provide specific answers to such questions. Consider the First Amendment, which says: "Congress shall make no law respecting an establishment of religion." What meaning should be given to these words? Exactly how should "an establishment of religion" be defined and applied in a specific case?

In the 1940s a New Jersey law required the state to pay for the busing of students attending private religious schools. Did this violate the "establishment of religion" clause? The Court concluded that it did not because bus transportation, like police and fire protection, is a general public service and not directly connected with any religious activity. How about a 1960s New York State law authorizing a non-denominational prayer in public schools? This time the Court ruled against the activity because it was "a religious activity" and "inconsistent with the Establishment Clause."

In both cases, though, the Court did not vote unanimously. And in the New York case a majority reversed a New York State Supreme Court ruling upholding the prayer because no student was forced to recite it.

The words in the Constitution do not automatically interpret and apply themselves to specific cases. Individual Supreme Court justices do the interpreting and applying, and often they do not agree.

Does the Constitution require a police officer to tell a criminal suspect what his or her rights are? Citing the 14th Amendment, a 1966 Court decision in Miranda v. Arizona detailed rules for handling criminal suspects, including what became known as the "Miranda warning," the right to a lawyer, and the right to keep silent. Legal conservatives attacked the decision as having no basis in the 14th Amendment's general words, which state that no one has the right to deprive "any person of life, liberty, or property without due process of law."

In 1999 the Court's conservatives had an opportunity to overrule Miranda. But in a written decision, one of those conservatives, Justice William Rehnquist, wrote, "Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture. Whether or not we would agree with Miranda's reasoning and its resulting rule, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now."

Over more than 200 years the Supreme Court has built up a body of decisions. In making new ones, it considers precedents created by earlier Court decisions. Writes Anthony Lewis in the New York Review: "Stare decisis, Latin for 'let the decision stand,' is an essential ingredient of judicial law. In the Anglo-American legal system, judges build on precedent from case to case. If there were no respect for the past,…the law would be intolerably unstable. Private action taken in reliance on judicial definitions of the law would become impossibly unpredictable."
-Anthony Lewis, "The Court: How 'So Few Have So Quickly Changed So Much,'" New York Review, 12/20/07

In considering a new case, Supreme Court justices study previous cases that are at least somewhat similar. That may lead them to apply to the new case stare decisis, the precedent established in an earlier case that has become part of the "national culture"-even if the justices have some misgivings about it.

For discussion

1. What questions do students have about the reading? How might they be answered?

2. Do you think that in the New Jersey busing and New York school prayer cases the
The Supreme Court contradicted itself? Why or why not?

3. Why did Justice Rehnquist support the ruling in Miranda when he had a chance to
overturn it? Why do you think that stare decisis is "an essential ingredient in judicial law"?

4. The First Amendment states: "Congress shall make no law…abridging the freedom of…the press." This sounds very clear and specific. But consider New York Times Co. v. Sullivan, a 1964 case which resulted from a New York Times advertisement declaring that racist Southern officials were acting lawlessly against the civil rights movement. The Court ruled on this question: Can well-known public officials receive damages for libel if they are accused of something through a false statement of fact? How do you think the justices ruled and why?

Divide the class into groups of four to six students to discuss and decide this case. A reporter might summarize for the class each group's ruling and reasoning. Then conduct a general class discussion.

Note: The Supreme Court struck down a libel award of $500,000 by an Alabama court. It said that public figures cannot receive damages for libel unless they prove that a false statement of fact was made recklessly or maliciously.

5. The First Amendment also states: "Congress shall make no law…abridging the
freedom of speech. In Buckley v. Vale, a 1976 case, the Supreme Court ruled on the following: Is it constitutional for individuals and groups who are not themselves running for office to spend unlimited amounts of money on advertisements in support of a candidate for public office? How do you think the justices ruled and why?

Divide the class into groups of four to six students to discuss and decide this case. A reporter might summarize for the class each group's ruling and reasoning. Then conduct a general class discussion.

Note: The case involved a number of issues, all of them bearing on freedom of speech and in answering yes to the question, the Supreme Court ruled that, in effect, money is speech.

Student Reading 2:
Four Supreme Court decisions on race and what they tell us

The Dred Scott case

In the 1857 Dred Scott decision, Chief Justice Roger Taney wrote that a black man "had no rights which the white man was bound to respect." He was writing for the Court on the case of a slave who had been taken by his owner to Illinois, a free state, and the Wisconsin Territory, also free. After the owner died, Dred Scott sued for his freedom on the grounds that he had lived in areas where slavery was illegal. The Court ruled 7-2 that he was not a person, not a citizen, but property, and had no right to sue. Scott was freed soon afterward, but died nine months later.

After the Civil War and the addition of amendments to the Constitution, all slaves became free and citizens. No state, declared the 14th Amendment, could "deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law."

The Homer Plessy case

How would the words in the 14th Amendment be applied in a specific case? In 1896, an answer came in Plessy v. Ferguson. Homer Plessy had refused to ride in the "colored" coach of a railroad train during its 60-mile trip from New Orleans to Covington, Louisiana. A police officer forced him off the train and jailed him for violating a Louisiana law requiring "equal but separate accommodations for the white and colored races." Judge Ferguson of Louisiana ruled against Plessy, but the case eventually reached the Supreme Court.

The Supreme Court ruled 8-1 against Homer Plessy. Justice Henry Brown delivered the Court's opinion that "the object of the [14th] Amendment was undoubtedly to enforce the absolute equality of the two races before the law," but "it could not have been intended to abolish distinctions based on color….We cannot say that…the separation of the two races in public conveyances is…more obnoxious to the Fourteenth Amendment than the acts of Congress requiring separate schools for colored children….If one race be inferior to the other socially, the Constitution of the United States cannot put them upon the same plane."

Justice Brown could not imagine that the 14th Amendment "intended to abolish distinctions based on color." For him, one of those distinctions was the social inferiority of African-Americans. So, writing for the Court, he interpreted the 14th Amendment to mean that a citizen could be deprived of his liberty with due process of law and that "equal protection of the law" did not extend to African-Americans. Under the decision, the Court made African-Americans second-class citizens-and few whites objected.

In 1896, open racism was common in the white population and in the all-white Supreme Court. The inferiority of African-Americans, social and otherwise, was taken for granted and led a majority of the Court to ignore the 14th Amendment's requirement that no person could be denied "the equal protection of the law."

Only Justice John Marshall Harlan dissented from the Court's decision. He wrote, "Our Constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law….The arbitrary separation of citizens, on the basis of race, while they are on a public highway is a badge of servitude wholly inconsistent with the civil freedom and equality before the law established by the Constitution. It cannot be justified upon any legal grounds." Justice Harlan was more than a half-century ahead of his time.

The Oliver Brown case

Over the next 58 years the country changed. Oliver Brown and 13 other African-Americans in Topeka, Kansas, were not allowed to enroll their children in the closest neighborhood school, an all-white school. They sued with the help of the NAACP. Their case reached the Supreme Court, which ruled on Brown v. Board of Education of Topeka, Kansas (1954). The question: Does the Constitution permit a school district to separate children by race in "separate but equal" facilities?

In 1896 Justice Henry Brown had written that the 14th Amendment "could not have been intended to abolish distinctions based on color." But now Chief Justice Earl Warren led the Court in a 9-0 decision that said the reverse. "Equal protection of the law" did extend to African-Americans. "We conclude that in the field of public education the doctrine of 'separate but equal' has no place. Separate educational facilities are inherently unequal."

This decision is an example of how the Supreme Court changes in response to changing social and cultural conditions. In such instances, the Supreme Court may ignore stare decisis and reverse the decision of an earlier Court.

The Crystal Meredith case

Chief Justice John Roberts heads the Supreme Court today. Probably his most publicized recent decision to date came in two racial discrimination cases involving affirmative action policies by school systems in Louisville, Kentucky, and Seattle, Washington. To achieve better racial balance, these school systems used race as a determining factor in school admission. Both school systems developed their policies to comply with the historic 1954 Brown ruling that declared school segregation unconstitutional.

In Louisville, Crystal Meredith, a white mother, sued the school district because when she tried to enroll her son in a kindergarten a mile away from their home, officials of the Jefferson County Board of Education refused his admission. They said that even though there was room, the son's admission would upset the school's racial balance. He would have to be bused to a school 10 miles away.

The Court split 5-4 along conservative/liberal lines in 2007, with the majority deciding that the Louisville and Seattle programs were unconstitutional. Chief Justice Roberts quoted the words of a lawyer who spoke before the Supreme Court in 1954 in favor of ending segregation: "…no state has any authority under the equal-protection clause of the Fourteenth Amendment to use race as a factor in affording educational opportunities among its citizens." In 1954 white segregationists were using race to deny African-Americans educational opportunities. Now a Supreme Court majority was finding that Louisville and Seattle were using race to deny whites educational opportunities.

Roberts wrote that the way "to stop discrimination on the basis of race is to stop discriminating on the basis of race." Was a majority on the Court now influenced by the feelings and views of those whites who think affirmative action programs discriminate against white students and deny them educational opportunities?

In this decision, the Supreme Court responded to changes in social and cultural conditions by using stare decisis to reverse the decision of an earlier Court. The new conservative court decided that "conscious racial integration is the moral equivalent of conscious racial segregation." (Hendrik Hertzberg, New Yorker, 7/9 & 7/16/07)

For discussion

1. What questions do students have about the reading? How might they be answered?

2. How do changing social and cultural conditions in the country affect Supreme Court rulings? Compare, for example, the decisions of 1896, 1954 and 2007.

3. How do you explain the 2007 decision on affirmative action?

Student Reading 3:
Presidential candidates & the Supreme Court

In his book The Nine, Jeffrey Tobin notes that Edward Meese III, attorney general under President Ronald Reagan, called for "a jurisprudence of original intention." Meese maintained that the words in the Constitution should mean only what the framers of the Constitution thought they meant. As Judge Robert Bork put it, "The framers' intentions with respect to freedoms are the sole legitimate premise from which constitutional analysis may proceed." For Meese and Bork, the words in the Constitution were not adaptable and did not change with time or need.

Supreme Court Justice William Brennan wrote in 1985 that, "the genius of the Constitution rests not on any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems and current needs." For him, the words in the Constitution were adaptable and their interpretation dependent on changing times and the changing needs of the nation.

The opposing views of Meese and Brennan are reflected in today's Supreme Court and demonstrate how differing judicial philosophies can lead to conflicting interpretations of the Constitution.

The President nominates candidates for the Supreme Court whenever an opening occurs on the court. Since appointments are for life and the nine justices often make far-reaching decisions, a president's nominations are unusually important. Rarely does the Senate reject a president's candidate.

Today's Supreme Court

Chief Justice John Roberts and Justices Samuel Alito, Antonin Scalia, Clarence Thomas, and Anthony Kennedy, are usually regarded as "strict constructionists" and "conservatives" who, like Meese, emphasize "a jurisprudence of original intention." Scalia even calls himself an "originalist." Kennedy is regarded as a "conservative moderate" and has been the swing voter in 5-4 decisions.

Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter are usually regarded as "liberals" and lean toward views expressed by Justice Brennan.

But such terms as "conservative" and "liberal" over-simplify the judicial philosophies of the justices.

But whatever terms are used to describe them, today's Supreme Court justices divided 5-4-- along "conservative" and "liberal" lines--in one-third of their decisions during their last term.

At his confirmation hearing, Roberts described his judicial approach as "modest" and said that justices should not legislate or "execute the laws." This, he said, was up to the Congress and the President, respectively. "Judicial activist" is a term used negatively to describe a justice who, in the opinion of conservative critics, is legislating or executing through decisions rather than interpreting the Constitution as its framers understood it. But is this possible? Are justices who say they are following the framers' "original intent" really able to know and act on that original intent?

After Roberts joined the Court, he helped decide the case of a real estate developer who had wanted to build on wetlands. The Army Corps of Engineers, which is part of the Defense Department, had denied the developer the right to build there, arguing that the wetlands were protected under the federal Clean Water Act. The developer sued the Corps. Chief Justice Roberts voted for the developer, maintaining that the Corps' decision to forbid development was too costly. Justice Stevens noted that whether benefits outweighed costs was a policy question that "should not be answered by appointed judges." (Adam Cohen, op-ed, "What Justice Roberts Forgot in His First Term: Judicial Modesty," New York Times, 7/9/06)

Did this make Roberts a "judicial activist" and Stevens a "strict constructionist"--or even an originalist? Years ago Stevens voted against the University of California's affirmative action program. But he recently supported the affirmative action programs in the Louisville and Seattle school districts, as did his other "liberal" colleagues. Yet, Stevens says, "I don't think of myself as a liberal at all….I'm pretty darn conservative."

It seems that a justice may view him or herself as one who honors the framers' "original intent" when they wrote the Constitution, but still look very much like a "judicial activist" at times. Terms used to describe justices can be slippery, and over their years on the Court, justices may change their minds.

The next president and selections of new justices

"The next president will probably have the opportunity to appoint several justices, and therefore voters have the right to know precisely how the candidates will think about that monumental task….The time for questions is not when the president is standing at the podium with a justice whose term may last for decades. It's when we're trying to decide who gets to stand at the podium and therefore who gets to sit on the court." (Anna Quindlen, "The 2008 Bench Press," Newsweek, 5/12/08)

The current presidential candidates have not shared many details about how they think about the Supreme Court. But they have provided some insight into their likely thinking about Court nominations. Six of the nine current justices are 70 or older, so it is likely that through retirement or death one or more of them will be replaced during the next four to eight years.

Senator John McCain

He has said repeatedly that he favors "judges of the character and caliber of Justices Roberts and Alito," and has attacked his Democratic rivals for voting against their nominations.

"My nominees will understand that there are clear limits to the scope of judicial power, and clear limits to the scope of federal power." (5/6/08)

"For decades now, some federal judges have taken it upon themselves to pronounce and rule on matters that were never intended to be heard in courts or decided by judges," said McCain (5/6/08). He has regularly said he would not appoint "activist judges" who legislate instead of "strictly interpreting" the Constitution.

"If I am fortunate enough to be elected the new President of the United States, I pledge to you to be a loyal and unswerving friend of the right-to-life movement." (1/22/08)

Senator Barack Obama

"We need somebody who's got the heart, the empathy, to recognize what it's like to be a young teenage mom. The empathy to understand what it's like to be a poor African-American, or gay, or disabled, or old. And that's the criteria by which I'm going to be selecting judges." (7/17/07)

Obama said that Chief Justice Earl Warren "had the wisdom to recognize that segregation was wrong…because it was immoral and stigmatized blacks." (7/17/07)

Explaining why he would soon vote against confirming John Roberts for the Supreme Court, Obama said: "When I examined Judge Roberts' record and history of public service, it is my personal estimation that he has far more often used his formidable skills on behalf of the strong in opposition to the weak….he seemed to have consistently taken sides with those who are dismissive of efforts to eradicate the remnants of racial discrimination….and seemed dismissive of the concerns that it is harder in this world and in this economy to make it when you are a woman rather than a man."

Senator Hillary Clinton

Said Clinton: "I will appoint judges to our courts who understand the role of precedent, that it actually does mean something and also the importance of Roe v. Wade [the Supreme Court's 1973 decision legalizing abortion]--that it truly is the touchstone of reproductive freedom and the embodiment of our most fundamental rights….So I will appoint well-qualified judges who really respect the Constitution and see it as the living document--which it is--that has given us the core of our values and our freedoms for 225 years now."

"I think the courts should be independent and not be political footballs," said Clinton. (7/17/07)

"I believe in the freedom of women to make their own decisions about the most personal and significant matters affecting their lives. That is why I strongly support Roe v. Wade." (In a statement to NARAL Pro-Choice America)

"As President, I will promote policies and judicial nominees who will uphold our constitutional liberties."

The next president--whether it is John McCain, Barack Obama, or Hillary Clinton--will likely appoint Supreme Court justices who will decide such questions as these in the coming years:

• Are a citizen's privacy rights on the telephone and the internet protected from government inspection?
• Must the government obey laws and international agreements banning torture?
• How separate must church and state be?
• Will a woman's right to an abortion (as determined by Roe v. Wade) be overturned?
• Is any school affirmative action program constitutional?
• How liable are corporations for faulty products (like heart valves) or actions (like the Exxon Valdez oil spill in Alaska)?

For discussion

1. What questions do students have about the reading? How might they be answered?

2. What is a "strict constructionist"? a "judicial activist"?

3. How might a Supreme Court justice make a ruling on a case based on what Washington or Madison thought more than 200 years ago?

4. Should the words in the Constitution be defined and interpreted to allow for changing times and needs? Why or why not?

5. Do you think Chief Justice Roberts regards himself as a "judicial activist"? Why or why not? How do you explain his decision in the case of the developer?

6. Why may labeling Supreme Court justices be "slippery," even "inaccurate"?

7. What does Senator McCain mean by "activist judges"? What does he mean by interpreting the Constitution "strictly"?

8. Do you think that Senators Obama and Clinton would disagree with Senator McCain's choices for the Supreme Court? Or that he would agree with theirs? Explain.

9. How might you find out more about candidate thinking about Supreme Court appointments?

10. If you were President, what would be three of the most important criteria for a Supreme Court nomination? How would you know whether or not the nominee you selected met these criteria?

11. How do you think each presidential candidate would want a Supreme Court nominee to decide on the questions at the end of the reading?

Inquiry

1. The Constitution requires the President to submit his or her nominees for the Supreme Court to the Senate for its "advice and consent." Critics like Anna Quindlen have complained that "members of the Senate ask questions to which they already know they will not get answers." (Newsweek, 5/12/08) The two most recent nominees for the Supreme Court who came before the Senate for confirmation are Chief Justice Roberts and Justice Alito. What evidence do you find to support or contradict Quindlen's opinion? Answer this question in a well-developed paper with supporting evidence or present your findings in a report to the class.

2. Assign students to select for investigation any set of words in the Bill of Rights that might raise constitutional issues in a particular case. For example: "the right of the people peaceably to assembly and to petition the government for a redress of grievances"; "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures"; "the right to a speedy and public trial by an impartial jury."

After making a preliminary inquiry to find Supreme Court cases that have dealt with these words, ask each student to frame a question for approval by the teacher. Then have the student answer the question in a well-developed paper or presentation to the class.

3.Frame a question for teacher approval on an inquiry into the views of a presidential candidate on selecting Supreme Court nominees and on Supreme Court decision-making. Then discuss your findings in a well-develop
ed paper or presentation to the class.

4. Gore v. Bush was the most important and most controversial of any Supreme Court decision in recent times and the only one in American history to decide a presidential election. By what reasoning did the Court decide in favor of Bush? What is your view of this decision and why?

5. Justice Stevens wrote the majority decision in a New London, CT, case supporting the city's right to seize a woman's house and develop her private land into a commercial office park. Stevens' view is that he was using "judicial restraint" in following the decision of elected officials and "clearly established precedents." (Jeffrey Rosen, "The Dissenter," New York Times Magazine, 7/9/06) But "conservatives" Scalia and Thomas voted against this decision. Critics argued it violated the Fifth Amendment's prohibition on depriving an individual of "private property without due process of law." How do you assess the majority decision?

This lesson was written for TeachableMoment.Org, a project of Morningside Center for Teaching Social Responsibility. We welcome your comments. Please email them to: lmcclure@morningsidecenter.org.

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