There’s a story Americans have learned about the Supreme Court, a story that affects the way we view high-profile cases like the ones about same-sex marriage.
In this story, the Supreme Court has played a crucial, maybe the crucial, role in our country’s progress toward ever greater freedom and justice. Brown v. Board of Education – the 1954 decision that outlawed separate-but-equal public schools – is central to that story, the shining example of how the court has broadened our constitutional guarantees.
For many people, a decision in which the court finds a constitutional right to same-sex marriage would be the next great chapter in that book. The story is, however, false. In our actual history, the court has often been a bystander as freedom and equality have grown – and has frequently been a villain.
The heroic conception of the court is a thoroughly modern one. During the first decades of our history under the Constitution, the Supreme Court was, by current standards, a remarkably passive institution. In its first 70 years, the court overturned only two federal laws. On the first occasion, the court said Congress was giving the federal judiciary more power than the Constitution allowed. In that same span of time, the court struck down only 34 state laws and one city ordinance.
Since then, Americans have gotten freer and more equal in many respects, and the Supreme Court has grown more assertive. Yet those two trends were often unrelated.
The Brown decision aside, the court’s record on race has been fairly awful. The second time it struck down a federal law, the court protected slavery. That was in the infamous 1857 case of Dred Scott vs. Sandford. The court also upheld the internment of Japanese-Americans during World War II.
There is an academic debate about how much Brown really accomplished, with skeptics pointing out that actual desegregation occurred only when Congress passed the Civil Rights Act of 1964. What often goes unnoticed is that the decision in Brown might not have been necessary if the court hadn’t blocked earlier tries to bring justice to blacks.
The Fourteenth Amendment required states to extend the equal protection of the law to all people and gave Congress the power to enforce the guarantee. So Congress voted to make all inns, public conveyances on land or water, theaters, and other places of public amusement open to all people regardless of race, color or previous enslavement. But the Supreme Court, in 1883, protected segregation by striking down the law.
We don’t have the court to thank for free political speech, either. Everyone agrees that is the core purpose of the First Amendment’s free-speech guarantee.
Open political debate has come under attack from government several times in American history, starting with the passage of the Alien and Sedition Acts of 1798. But as Robert F. Nagel points out in Judicial Power and American Character, the courts played no role in ending any of these episodes. They ended for other reasons (like the election of Thomas Jefferson in 1800).
The court has expanded freedom of expression in ways that range from arguable to dubious, protecting campaign ads by corporations, flag burning and virtual child pornography. Whatever the wisdom of these decisions, it seems clear that we were a free country before them, and the freedoms gained aren’t the kind that soldiers die for.
Roe vs. Wade certainly made a difference in American abortion law. Without it, late-term abortions, in particular, would probably not be as free from prosecution as they now are. Whether that counts as an advance for freedom and justice is obviously a matter of continuing dispute. It is, at the least, not one of those improvements in American life – like the fact that you no longer have to be a white male property owner to vote – that almost everyone celebrates.
The mythology of a heroic court distorts our understanding of U.S. history, making us forget that for the most part we secured our status as a free people outside the courts. It makes us more averse to proposals to reduce judicial power than we otherwise would be. And it cultivates the romance of the landmark case – the dramatic legal breakthrough for the oppressed, like Brown.
The appeal of that romance diverts our attention from its consequences: a political culture in which courts are free to exercise vast power as a matter of routine, to the detriment of self-government.
Getting the history right won’t help resolve particular cases. The justices might be more likely to stick with a modest conception of their role, however, if they remember that the court has much to be modest about.