Our society keeps changing. Does the law change too?
It’s a common perception that the law is a fixed centerpiece of society, a set of unchanging assertions that guide the behavior of everyone and everything. It gives people faith that there is a truly global right and wrong. While this sentiment does hold often true, it becomes less applicable as we deviate from certain fundamental human tenets. For example, it’s very easy to look at laws about murder or theft and understand what exactly they mean and how they are fixed in our society. We universally agree that killing people is a crime, or breaking into someone’s home and stealing their valuables is a crime, since these are fundamental things humans agree are bad — killing and stealing. But it gets much harder, for example, when attempting to understand the national gun market and determine whether people should purchase certain guns. The scope and impact is much larger. When we seek to apply large principles to our society like “freedom of speech” and the “equal protections of the laws,” principles that are far removed from fundamental morals, we end up having to appoint 9 old and supposedly smart people to a “supreme” court to decide what those phrases really mean.
It’s accepted in the United States that the Supreme Court is the final say in any legal matters. Interestingly, they aren’t the final say because they are always right, but rather they are always right because they are the final say. As a society, there has to be agreement that someone has a final decision, and the framers of the U.S. believed unelected, appointed, apolitical judges were the best way of doing so. They would be the resolvers of all disputes.
Yet any system where there is this concept of a “final say” has inherent problems. Firstly, judges may not have the latest scientific, economic, or specific knowledge that is relevant to a legal issue. They have to rely on briefs submitted by others or come up with weird tests to answer legal questions. Secondly, these judges have the power to shape the structure of our country without even being elected. There are likely several other flaws with the structure of our judicial system, and each warrants its own discussion. But the issue I want to focus on surrounds the idea of precedent.
Precedent is simply the idea that the Supreme Court will stick to what it has said before. If a particular issue has been ruled a certain way, it is imperative to stick to that decision to ensure the stability of the legal system. Otherwise, if the Court keeps flip-flopping, lawyers around the country won’t know what’s allowed and what isn’t anymore. Chief Justice John Roberts, during his confirmation hearings in 2005, said “I do think that it is a jolt to the legal system when you overrule a precedent.” He goes on to say, “It is not enough — and the court has emphasized this on several occasions — it is not enough that you may think the prior decision was wrongly decided.” There has to be a reason the precedent has become unworkable and needs to be changed.
Precedent itself isn’t a problem. It is critical to the functioning of our country’s legal structure. So naturally, it becomes a big deal when precedent is overturned. It signifies that the Supreme Court thought they got something wrong. This begs the question, what does it mean to be wrong? We must return to the misconception that the law is fixed and unchanging.
I claim that the Court’s decisions are simply a reflection of the will of the people and a changing society. The reason precedent changes is because the people wanted it to or society demanded it. A wrong decision simply means the people don’t want it anymore, or it doesn’t make sense in our changing times. In an ideal world, we’d like to think that the Supreme Court passes down unchanging decisions from the heavens that the masses must follow because the law has some inherent meaning and interpretation. But in reality, the Constitution can be interpreted in a vastly different way to justify a different decision. The justices can agree the previous decision needs to be changed based on a different reading of the law as applied to the present day.
Same Sex Marriage
In 1970, Richard Baker and James McConnell attempted to get a marriage license in Minneapolis, but were denied solely because they were of the same sex. When they sued the state, claiming this denial violated several constitutional provisions, the Minnesota Supreme Court dismissed their lawsuit. They ruled that procreating and child rearing were always part of the definition of marriage when the Constitution was written. The US Supreme Court agreed with this decision, so Baker v. Nelson became precedent for not allowing same sex marriage.
In 2015, the Court was faced with a similar issue in the famous case, Obergefell v. Hodges. This case was the consolidation of 6 cases since they were all similar disputes. In the original one titled for Obergefell, the State of Ohio had refused to recognize the marriage of a same sex couple who had gotten married in a different state. When the issue reached the Supreme Court, they issued a broad ruling. Same sex marriage was to be legal in the United States because marriage is a fundamental right to every person that cannot be denied. This is a complete turnaround from Baker when marriage was tied with child bearing and procreation. Now, marriage is simply a social institution.
I couldn’t find polls from 1970, but the earliest polls I found from 1988 showed that only 11% of Americans supported gay marriage, and it would have only been lower in 1970. But by the 2010s, public opinion had immensely changed. By 2010, a majority of Americans supported same sex marriage, and by 2015 that number had crossed 60%. Many states around the country had recognized same sex marriage, and the number was only growing. Furthermore, the institution of marriage is heavily intertwined in our society. Tax benefits, asset transfers, joint ownership of property or savings, and joint insurance plans are all only available to married couples. After examining these facts of the 21st century society, the Court made its decision. It seems that the Court ruled on this case the way the American public would have, as if the public was the jury.
The Court could have easily stuck by Baker and said Ohio, or any other state, can choose to discriminate marriage how it wants to. The Constitution doesn’t state what marriage should be. Maybe the legislature should be the one deciding what marriage is. But the Court recognized the changing times and ruled accordingly. There will always be an endless debate of whether the Court should have let the people decide what kinds of marriage is allowed or whether this decision in Obergefell was appropriate. But it is apparent that the Court reflected the will of the people in making this decision.
Free Speech
In the late 1940s and 1950s, McCarthyism took hold in America. There was a big push against Communism, sometimes so much so that baseless accusations were made about treason. The Smith Act, which prohibited people from plotting to overthrow the government, was relied upon heavily. The fear of the Soviet Union secretly brainwashing the US gripped the country. In 1948, several members of the Communist party in the US were convicted under the Smith Act for allegedly plotting to overthrow the US government. The defendants argued that this act violated their freedom of speech under the first amendment. The Court, in the 1951 case Dennis v. United States, disagreed. They allowed the government to arrest and convict these Communist party leaders, even though they hadn’t called for any action. They had simply organized to set up media and press release infrastructure to spread their ideology against the government. The justices thought this provided a clear danger to the security of the country.
This seems a little reactionary to the communist threat, since they likely believed the goals of the communist party were to overthrow the government and implement a socialist economy. Having strict control over small populations who pose a threat seemed like a good idea. But a few years later, the Court reversed course in the 1957 case Yates v. United States. They said it was allowed for people to advocate for overthrow as an “abstract principle”, but let the Smith Act stand if people advocated for “concrete action,” which greatly narrowed down what the government could regulate. Later, in Brandenburg v. Ohio, the Court further narrowed it by saying the government could only regulate speech that called for “imminent lawless action.” Why these reversals? It seems as the communist threat had died down, the government no longer needed to have such broad powers because they might abuse it to censor speech. The freedom could be returned to the people.
Commerce
Congress shall have power “To regulate Commerce with foreign Nations, and among the several States…” This is the interstate commerce clause, the words that give Congress control over the national economy. It means Congress can regulate goods moving across state borders and related matters. Or does it? These words have gone through a roller coaster of interpretations, tests, and decisions over the past 200 years.
In the late 1800s and early 1900s, the Court stuck by the “wholly local” doctrine. The federal government could not regulate anything happening completely within state lines, like manufacturing or labor. Consider the 1895 case U.S. vs E.C. Knight Co., in which the federal government was looking to break up the monopoly the American Sugar Refining Company had on the sugar refining market. The Court said that manufacturing is a completely local activity, so the federal government had no jurisdiction there.
But the manufacturing done in one state by a huge corporation, like the American Sugar Refining Company, that employs thousands of workers and has a vast supply and distribution network that reaches every state of the country, can have drastic effects on the market in a different town across the nation. Such are the facts of a complex national economy that was beginning to take hold in the late 1800s. A similar case was Hamer v. Dagenhart, a 1918 case that prohibited the federal government from outlawing child labor, simply because labor was completely intrastate. The labor laws in one area can affect pricing in a completely different location. This wasn’t the small, fledgeling economy of the 1700s when the Constitution was written.
Once again, justices agreed. In 1941, the Court heard U.S. v. Darby. In it, the Court allowed the federal government to set minimum wage and maximum hour laws because they had a “substantial effect” on the national economy. As long as there was a real, tangible effect on the national market, regardless of whether Congress was explicitly regulating commerce, the law could stand. This commerce doctrine has been accepted by hundreds of judges since these cases were first decided since the facts of the country have changed.
Civil Rights
Perhaps the most famous instance of the Court overturning precedent is Brown v. Board of Education, a landmark civil rights case that paved the way for desegregation in the United States. Almost 60 years prior, the Court, in Plessy v. Ferguson, had legalized segregation using the famous “separate but equal” reasoning. Facilities for blacks and whites could be separate as long as they were equal. In 1954, the Brown decision was a complete turnaround from Plessy, when the justices said, unanimously, that “separate is inherently unequal.” They ordered the desegregation of schools all over the country.
Brown came at a time of severe racial fragmentation. The country was bitterly divided over issues of voting rights, segregation, and civil rights in general. There was no clear majority of what the country wanted. Yet, it was apparent that segregation was harming the black population. Their facilities were typically not well maintained, and they had to travel much farther for worse schooling. It was apparent that the changing times commanded some change in how we viewed the equality provisions in the Constitution, but the country certainly wasn’t ready for this.
Many states refused to obey, leading to a famous incident where the national guard was called on to protect black students in white schools. Progress towards integration was very slow, and the Court realized that if the public wanted to ignore their decision, they easily could do that. Soon after Brown, the Court heard a second case, Brown II, in which they ruled that the local district courts would enforce the decision with “all deliberate speed.” They let communities enforce segregation at any pace they choose because local populations should have the final say in how they live their lives. This wording emphasizes the fact that ultimately, the Court needs the public to respect them if they are to hold any power. If they go against public opinion, they could lose the respect they have, and the Court as an institution would deteriorate. Even though the Court is trying to keep up with changing times, they are still have to keep the respect of the American people.
Conclusion
While it seems that the Court reflecting the will of the people takes us forward as a nation, we get into a dangerous situation if we rely on changing times as justification for making legal decisions. The job of keeping up with changing times should largely be up to the legislature and the president — regularly elected representatives of the people. They should be in charge of enacting or changing policies as the people demand it. With elections every 2/4 years and heavy participation with their constituents, those two branches of government are best suited to keep in touch with society. The Court, on the other hand, doesn’t have that exposure to the public. If the Court gets in the business of trying to follow the people, it presents a dangerous future, one where these 9 justices can permanently set any precedent that they want. They can start determining what is right and wrong, instead of what is legal and illegal. They are on the Court for life and their mistakes could take decades to fix.
The Court should always try its best to stick to sound legal reasoning when making decisions. But more often than not, I believe that there is a correlation between changing society and changing decisions. The justices may not actively be basing decisions based on changing times, but the application of the law to the case at hand may demand some new interpretation if the old interpretation proves unworkable. In Obergefell, the justices must have seen how intertwined marriage is in society — tax benefits, insurance rates, etc — which made it improper to deny marriage to a subset of the population. In the commerce cases, the justices noticed that old decisions could not be adequately maintained in a new economy. Both of these cases are based on sound legal reasoning, yet still affected by changing times. And in Brown, we see that justices have to be aware of public opinion or otherwise risk losing their importance. By keeping a distant but also cognizant view of the American public, the Court applies obscure law to a rapidly developing world.
