Overturning Precedent and Concerns About Originalism

Today’s lesson is twofold. The overturning of judicial precedent can be very necessary at times, and judicial originalism is a good thing to be embraced. Here’s an overview of some major Supreme Court rulings that overturned landmark precedents.

1. West Virginia State Board of Education v. Barnette (1943). The court ruled 6-3 that forcing public school students to salute the American flag was unconstitutional, because it compelled them to confess orthodox politics. This overturned Minersville School District v. Gobitis (1940), which had said that mandatory flag salutation was constitutional, because national unity was the basis of national security.

2. Brown v. Board of Education of Topeka (1954). The court ruled 9-0 that segregating black kids from whites — “a separate but equal” policy of educational facilities for racial minorities — violated the 14th Amendment’s Equal Protection Clause. This effectively overruled Plessy v. Ferguson (1896), which had said that while the 14th Amendment did indeed establish absolute equality for the races before the law, separate treatment did not imply the inferiority of African Americans. Brown v. Board of Education of Topeka now said, to the contrary, that “separate but equal” facilities are inherently unequal and thus violate the Constitution: a segregation of public education based on race instills a sense of inferiority and has a detrimental effect on the education and personal growth of African American children.

3. Mapp v. Ohio (1961). The court ruled 6-3 that evidence gathered by authorities through searches and seizures that violated the Fourth Amendment cannot be presented in a state court. This overturned Wolf v. Colorado (1949), which had ruled that illegally obtained evidence did not necessarily have to be excluded from trials (and that the solution to such illegally obtained evidence lay in disciplining police officers under the public eye).

4. Gideon v. Wainwright (1963). The court ruled 9-0 that state courts must appoint attorneys for defendants who cannot afford to retain lawyers on their own. This overturned Betts v. Brady (1942), which had ruled the opposite — that defendants don’t have the right to be appointed counsel if they can’t afford it.

5. Miranda v. Arizona (1966). The court ruled 5-4 that suspects being interrogated by the police must be informed that they are allowed to remain silent and also allowed to ask for an attorney during questioning. This overturned both Crooker v. California (1958) and Cicenia v. Lagay (1958) which said that denying counsel didn’t violate the Due Process Clause of the Fourteenth Amendment.

6. Brandenburg v. Ohio (1969). The court ruled 9-0 that held that the government cannot punish a Ku Klux Klan leader’s inflammatory speech unless that speech is directed to inciting imminent lawless or violent action. Hate speech, or the mere advocacy of violence, does not in itself incite to violence, and generally speaking, hate/inflammatory/rebellious speech is fully protected under the First Amendment. This overturned Whitney v. California (1927), in which a citizen was convicted for helping to establish the Communist Labor Party of America, and teaching the violent overthrow of government.

7. Gregg v. Georgia (1976). The court ruled 7-2 that capital punishment laws don’t violate the Eighth and Fourteenth Amendment’s prohibitions on cruel and unusual punishment. This overturned Furman v. Georgia (1972), which had invalidated all death penalties.

8. Lawrence v. Texas (2003). The court ruled 6-3 that two persons of the same sex cannot be criminalized for engaging in sexual conduct, as it violates the Due Process Clause of the Fourteenth Amendment. This overturned Bowers v. Hardwick (1986), which had ruled that there was no constitutional protection for acts of sodomy, and thus that states could outlaw sodomy if they wanted to.

9. Crawford v. Washington (2004). The court ruled 9-0 that the Sixth Amendment’s Confrontation Clause gives the accused the absolute right to confront witnesses and cross-examine their testimony. This overturned Ohio v. Roberts (1980), which had said that the purpose of the Confrontation Clause was to restrict the admission of unreliable hearsay into evidence, and judges could dispense with it if they found testimony reliable. The result of this was that for 24 years, identical cases were often treated very differently, depending on what a judge personally found to be “reliable”.

10. Citizens United v. Federal Election Commission (2010). The court ruled 5-4 that the government cannot ban corporate funding of independent political broadcasts during election cycles, as it violates the First Amendment. This overturned Austin v. Michigan Chamber of Commerce (1990), which had allowed the government to prohibit corporations from using treasury money to support candidates in elections (on grounds that corporate wealth can unfairly influence elections).

11. Obergefell v. Hodges (2015). The court ruled 5-4 that the right of homosexual marriage is guaranteed by the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment. This overturned Baker v. Nelson (1972), which said there is no constitutional right to same-sex marriage.

12. Janus v. American Federation of State, County, and Municipal Employees (2018). The court ruled 5-4 that union agency fees extracted from nonconsenting public-sector employees was a violation of the First Amendment. This overturned Abood v. Detroit Board of Education (1977), which had said non-union members may be assessed agency fees as those non-union members are benefiting from the collective bargaining process as much as the union members are.

13. Dobbs v. Jackson Women’s Health Organization (2022). The court ruled 6-3 that the Constitution does not confer the right to an abortion. This overturned Roe v. Wade (1973) and also Planned Parenthood of Southeastern Pa. v. Casey (1992), the latter of which had refined Roe by saying that the Constitution protects the right to seek a previability abortion (approximately before the third trimester).

The vast majority of these rulings (the ten blue ones) were correct in overturning the precedents, though I disagree strongly with the red rulings and feel ambivalent about the green one. My level of dis/agreement has nothing to do with whether or not the outcome is un/favorable to me, though I do personally like the outcomes of all the blue cases, and dislike the outcomes of the red and green. What matters is whether or not the rulings were reached by sound jurisprudence. The reds were clearly not.

In the case of (10), Citizens United v. Federal Election Commission (2010), the majority based their ruling on a flimsy understanding of the First Amendment. I’m pretty uncompromising when it comes to defending the First Amendment, but corporations aren’t members of society in the way that individuals are, and there are compelling governmental interests to curb corporations’ ability to spend money during local and national elections. Fair elections cut to the heart of our democracy, and appeals to the First Amendment to allow unchecked corporate funding are extremely hollow.

The case of (12), Janus v. American Federation of State, County, and Municipal Employees (2018), rests on an even worse appeal to the First Amendment. Union agency fees do not require individuals to endorse ideas they disagree with. Abood v. Detroit Board of Education (1977) made clear that agency fees could only be used to recover the costs of collective bargaining, contract administration, and grievance adjustment purposes, and that they could not be used for ideological or political purposes. Just because unions are political bodies and get politically involved doesn’t mean that paying union dues or agency fees constitutes an endorsement of everything a union does. I’ve been a union member of my public library for 27 years now, and have served proudly as a president for three and a half terms. I’ve also disagreed plenty with what my union does at times, and for the political candidates it endorses. In no way does that mean paying union dues conflicts with my freedom of expression. Paying my union dues is simply right and fair, so that I’m not a freeloader who reaps benefits like a welfare king. Janus goes down as one of the worst rulings that Samuel Alito ever wrote. Abood should not have been overturned.

Then we have the case of (13), Dobbs v. Jackson Women’s Health Organization (2022), with Alito once again at the helm in overturning a landmark 70s ruling. Unlike Janus, however, Dobbs isn’t so easy to tear apart. It’s hard to deny the problems with Roe v. Wade. Even Ruth Ginsburg acknowledged its foundation was shaky. She believed that women ought to have sovereignty over their bodies (as do I), but she also believed that Roe was decided wrong. It was decided on the basis of privacy — holding that the Due Process Clause of the Fourteenth Amendment provides a “right to privacy”, which protects a pregnant woman’s right to an abortion — and Ginsburg thought the Equal Protection Clause would have provided a stronger shield for abortion rights. But, as even the dissenting justices in Dobbs candidly admit, the right to an abortion in any context lacks constitutional foundation.

Ginsburg was no doubt acutely aware of this, which is why she also believed that the Equal Protection Clause should have been used cautiously and incrementally, in a number of rulings instead of one fell swoop — a swoop that probably harmed the evolution of abortion rights by going too far and too fast. With its sweeping pronouncement Roe created a more polarized environment, inviting no dialogue with legislators and effectively removing the ball from the lawmakers’ court. At the time of the ruling (1973), abortion laws were evolving across the nation, with a strong trend towards liberal statutes. Roe contributed to a major pro-life backlash, making a ruling like Dobbs more and more inevitable when conditions were right for it.

As dispirited as I am by Dobbs, I can’t pretend that it was a bad ruling. We should also bear in mind that America is the only place where abortion ever enjoyed Constitutional protection. In other countries where it is legal, it’s legal because it is codified in laws (as it is in some of our 50 United States), laws that are the outcome of legislative give and take, as laws should be. In many of our states, abortion is permitted up to 15 weeks, which is liberal compared to European countries which cut off the abortion option at 12 weeks. If America is ultra-conservative about abortion in some states, it’s flaming liberal in others (in four states, third-trimester abortions are legal), and that’s the nature of federalism. I would prefer to see a right like abortion enshrined in federal law (rather than leave it to the states), but most of my objections to Dobbs have to do with my pro-choice convictions. I can muster up some judicial arguments but they’re not strong.

As for the ten rulings in blue (1-9, 11), they overturned precedent with complete originalist integrity. Students shouldn’t be forced to salute a flag in public schools; check. “Separate but equal” facilities is an oxymoron from a constitutional point of view; check. Evidence gathered illegally (without warrants) should be inadmissible; check. All defendants are entitled to legal counsel, whether they can afford it or not; check. Suspects being interrogated deserve to be reminded of their rights; check. People should have the right to say what they want, no matter how inflammatory, hateful, or rebellious they are; check. Capital punishment is not necessarily cruel and unusual; check. Judges are not supposed to substitute a conditional guarantee of the Confrontational Clause for an absolute one found in the Constitution’s text; check. Gays should be able to bang each other to kingdom come, just like straights; check. Gays should also not be obstructed from marriage; check. All of those rulings overturned precedents that were wrongly decided.

Originalism: a safety corner for the bigoted and privileged?

It continues to surprise me that originalism is seen this way. I can only suppose that leftists have in their mind a Robert Bork-like caricature of originalism, where precedent counts for nothing and jurisprudence is a mask for the dark-age ideologue. (There’s a reason why Bork was rejected by the Senate.) When applied soundly, there is little to fear from originalism. It has proven time and time again to be liberating for all people. Consider:

It certainly doesn’t promote (a) blind nationalism. Take case (1), above, West Virginia State Board of Education v. Barnette (1943), where the court ruled that the First Amendment cannot enforce a unanimity of opinion on any topic, including deference to the American flag. This means that Minersville School District v. Gobitis (1940) — which said that public schools can require students to salute the flag — was wrong the day it was decided. It was overruled by conservative principles grounded in the First Amendment.

And not only do you not have to salute the flag, you can burn the thing (if it’s yours to burn), thanks to Texas v. Johnson (1989). One of the justices in that majority ruling was none other than the arch-conservative originalist, Antonin Scalia. Originalism is the enemy of blind patriotism, not a friend of it, because the framers of the Constitution had no use for unctuousness to one’s government.

Others object that originalism means that (b) racists would have won the day, but that’s entirely false. Take case (2), Brown v. Board of Education of Topeka (1954), which outlawed racial segregation, and which originalist justices cite with approval. It wasn’t a “liberal” or “progressive” ruling (at least not from a judiciary perspective). It was rather Plessy v. Ferguson (1896) — which upheld racial segregation — that was activist and judiciary liberal, because it violated the Fourteenth Amendment (ratified in 1868). The Equal Protection Clause of that Amendment says that individuals in similar situations must be treated equally by the law, and so school segregation is wrong, pure and simple. Saying that a black child cannot go to a white school was just as unconstitutional in 1896 as it was in 1954. Originalist justices understand this.

The idea that we would still have bans on interracial marriage if we adhered to originalism is also backwards. Originalists believe that the Fourteenth Amendment safeguards interracial marriage. That amendment’s Due Process Clause prohibits arbitrary deprivation of life, liberty, and property, while its Equal Protection Clause mandates that individuals in similar situations be treated equally by the law. In other words, originalists believe that Loving v. Virginia (1967) — which struck down interracial marriage bans — was the proper (conservative) ruling. Interracial marriage bans have been unconstitutional since 1868, even if it took 99 years for America to fully realize this.

Ditto for worries about (c) homophobia. Take case (10), Obergefell v. Hodges (2015). Bans on gay marriage were always unconstitutional (or at least since 1868), because of the Due Process Clause and Equal Protection Clause. To ignore that and be a homophobe is to be a judiciary activist instead of a proper conservative.

The hard-core originalist on the court right now is Neil Gorusch, and he authored Bostock v. Clayton County (2020), which says that an employer who fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. Gorsuch argued that Title VII prohibits employers from discriminating against any individual “because of such individual’s race, color, religion, sex, or national origin”. Discrimination on the basis of homosexuality or transgender status requires an employer to intentionally treat employees differently because of their sex — the practice that Title VII prohibits in all manifestations. Gorsuch’s reasoning was value-free and hinged solely on what the word “sex” meant to the lawmakers who put it in the Civil Rights Act. Bostock is in fact one of the most conservative rulings ever handed down by the Supreme Court, though people see it as a very liberal one. It may be friendly to liberal politics, but it’s conservative jurisprudence and the enemy of homophobia.

Still others say that originalism means that (d) sexists would have won the day, and that women would never have become entitled to equal protection under the law. But the Fourteenth Amendment prohibits denying “to any person within its jurisdiction the equal protection of the laws”. “Person,” not “men.” When women got the right to vote (with the Nineteenth Amendment in 1920) and fell under the Equal Educational Opportunities Act (in 1974), it may have been liberal progressive politics providing the impetus, but a judiciary originalist sees the matter a bit differently. The originalist sees “liberal” laws like these as simply removing blind spots and putting into practice what the Constitution always said or implied.

In short, originalism has nothing whatsoever to do with being privileged or bigoted. Few realize that there are liberal justices who pride themselves on being originalists. Ruth Ginsburg said, “I count myself as an originalist,” and Elena Kegan said, “We’re all originalists now”. (She said this in her Scalia Lecture at Harvard Law School in 2015, where she acknowledged the judicial indebtedness to Scalia, who “taught everyone to do statutory interpretation differently.”) For a simple reason: every justice, conservative and liberal, believes the Constitution is one of the finest legal documents ever written. It was always more enlightened and ahead of its time than many justices dreamed possible. It can’t always give us what we want, but then we shouldn’t expect it to. It plays no partisan favorites; it’s better than that.

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