There are three major myths about the U. Supreme Court.  The myths are “understood” as part of our heritage, but whenever someone is actually to be named to the Court, the myths are disseminated as though they were additional commandments that Moses received at Sinai.  The myths are:

1.      Judges are completely neutral and their individual backgrounds have no part in their judgment.  Their decisions are to be as if they were never born or raised under particular circumstances, but to be as if they sprang fully grown from the head of Zeus, as did Athena.

2.      The function of the court is to interpret the constitution according to the intent of the original writers of the constitution.  Any judge who interprets the Constitution and reads in something that is not in the text, is an evil “activist” judge.

3.      The Supreme Court does not, and should not, make law, it should merely interpret the Constitution, as it always has done.

These are absolutely myths and have nothing to do with reality.  Anyone who says that they are true is either lying (perhaps to his/herself as well as the public) or does not know American history and the development of the Court.  Rather than merely argue these points, let’s look at how the court decided key cases since the Constitution was adopted. 

The first case I want to review is Mayberry v. Madison, which the Marshall Court (Marshall was chief Justice) decided in 1803.  Before the 12^th amendment was adopted in 1804, electors cast their votes only for President.  Whoever received the second highest number of votes became the Vice-President.  In the election of 1800, Thomas Jefferson and Aaron Burr ran together on the Democratic ticket.  When the votes were counted, they had both received the same number and the election of 1800 was decided in the House of Representatives.  It was a long drawn out procedure and, in the interim, the President, John Adams (a Federalist) appointed a number of Federalists to government offices.   James Madison became Jefferson’s Secretary of State and, upon Jefferson’s advice, refused to deliver the commissions confirming the appointments.  An appointee, Mayberry, an appointee, sued and the case eventually went to the Supreme Court.  Marshall, and the Court. ruled that under the relevant law that was passed by the previous Congress, Mayberry had to be given his appointment, but the law was unconstitutional.  The duties of the Supreme Court are enumerated in Article III of the U.S. Constitution.  Nowhere in Article III is the Supreme Court given the right or authority to declare an act passed by the Congress and signed by the President unconstitutional.  Marshall read that this was an implied right.   I find two things about this decision interesting: (1) the most “activist” ruling of any Supreme Court came as far back as 1803 and (2) no one on the Court asked Madison what the “intent” of the founders was.  Not only was Madison one of the “founders,” he is also known as “the father of the constitution” for his leading role in the constitutional convention.

            The second case I’d like to examine is the Supreme Court decision of 1857, the decision in Dred Scott v. Stanford.  The Supreme Court, under Chief Justice Roger Taney, declared that all blacks, free as well as slaves, could never become citizens of the United States.  As part of their decision, they struck down a congressional act, the compromise of 1820, on the grounds that it established free states and therefore violated the Constitution, which called for the universal existence of slavery.  Taney later wrote that the Negro had no rights that a white man need consider.  It is hard to believe that a judge who had been raised as a New England abolitionist would have reached the same conclusion, so that the type of culture in a judges background does make a difference in how that judge will interpret a law.  Also, “original intent” played no part in this decision.  Since it is well-documented that the constitution was the result of a series of compromises and many of the delegates to the Constitutional Convention were opposed to slavery, it is very difficult to see why the Compromise of 1820 was unconstitutional because of the original intent of the “founding fathers.”

Finally, I would like to consider two Supreme Court cases together: Plessey v. Ferguson in 1896 and Brown v. Board of Education in 1954.  In Plessey v. Ferguson, Plessey held that segregation violated the equal protection clause of the 14thAmendment.  In 1896, the Supreme Court, under Chief Justice Henry Brown and by a vote of 7-1, ruled that “separate but equal” was an acceptable concept under the 14^th amendment.  Nowhere in the 14^th Amendment (or the Constitution) is the concept of “separate” ever raised.  In 1954, in Brown v. Board of Education, with Earl Warren as Chief Justice, the Court ruled unanimously that segregation did violate the 14^th Amendment and also stated “separate educational facilities are inherently unequal.”  In the 58 years between 1896 and 1954, there was no change in the 14^th Amendment or in any other relevant part of the Constitution.  Then why did only one Judge (Harlan) vote that “separate but equal’ was not constitutional in 1896 while 9 Judges voted that way in 1954.  Was it because one or the other were “activist” courts?  Was it because the 2 courts disagreed on “original intent”?  I doubt it.  I think that there was a tremendous shift in public sentiment in those 58 years.  In 1896, the Brown Court believed that public sentiment would not tolerate equality of the Nergro and in 1954, the public mood had evolved and changed.  Only 10 years later, the Civil Rights Act was  passed.

I think that reviewing several actual Supreme Court decisions indicates quite well that the three principles listed at the beginning of this post are myths – they have no basis in fact and the people who repeat them are either lying or do not know history.  The decision in Mayberry v. Madison shows that the concept of judicial “activism” began in 1803 and is today is merely a way of disagreeing with the decision of a Court.  The “intent of the founding fathers” had no effect in Mayberry v. Madison.  If it had, Chief Justice Marshall had only to ask Madison what the intent had been.  The effect of judicial background, upbringing, and societal opinion were obvious in the Dred Scott decision and in both decisions on “separate but equal.”  Anyone who says that the background of a judge should have absolutely no effect on their interpretation of the law is either a liar, a hypocrite, or ignorant of judicial history.  What they are really saying is “that if the Judge has a background similar to mine, he/she will reach the correct decision.