Supreme 180s: it doesn't happen often, but when the Supreme Court changes its mind and overturns an earlier decision, it can have a major impact. A look at key reversals of the past--and what may lie ahead.
Raised as Jehovah's Witnesses, Marie and Gathie Barnett had been taught that pledging allegiance to the flag was a form of idol worship prohibited by their religion. So when other children in their four-room schoolhouse in West Virginia rose every morning to salute the flag, the two sisters, ages 8 and 10, remained silently in their seats.
The year was 1942, and the United States had just entered World War II. Patriotic fervor was at a peak in their small town outside Charleston, and the West Virginia Board of Education had adopted a resolution that a student's refusal to salute the flag would "be regarded as an act of insubordination."
Morning after morning, the Barnett sisters were sent home in disgrace, and the West Virginia authorities appeared to be on solid ground. Two years earlier, the U.S. Supreme Court had ruled by a vote of 8 to 1 that school officials in Minersville, Pa., were not required to exempt an elementary school brother and sister, Jehovah's Witnesses named Lillian and William Gobitis, from reciting the Pledge. There seemed to be little chance that the Barnett sisters would be able to continue in public school without violating a central tenet of their faith.
But then something remarkable happened. The Supreme Court changed its mind. Appalled by mob attacks on Jehovah's Witnesses after the Gobitis decision and with two new Justices, the Court reversed its decision in Minersville School District v. Gobitis and held on June 14, 1943, that a compulsory flag salute was a form of compelled expression that violated the First Amendment's guarantee of free speech.
A HUMAN INSTITUTION
The Supreme Court's 6-to-3 decision in West Virginia v. Barnette * is an example of the Court's complicated relationship with its own precedents. And that relationship, in turn, says a great deal about the Court itself.
The Supreme Court is often thought of as a remote institution--nine Justices delivering judgments from on high and shielded from the normal ebb and flow of human affairs.
In fact, the Court is a thoroughly human institution. Except for the Chief Justice, who receives a car and driver, the Justices drive themselves to work. They live in ordinary houses and apartments, and their salaries are no higher than those of young lawyers at major big-city law firms.
While they don't have to worry about getting re-elected (they're appointed for life by the President, subject to Senate confirmation), they're very much aware of the world outside the Court and the winds of change that sweep through American society. In fact, much of the time, the Court does not so much create change as reflect it, particularly when it takes the infrequent, and dramatic, step of overturning one of its own earlier rulings.
One decision that many people see as ripe for overturning by the current Supreme Court is Roe v. Wade, the controversial 1973 ruling that established a right to abortion. Antiabortion activists are looking for a way to get this issue back before the Court.
In its 219-year-history, the Court has overturned only about 300 precedents--a tiny fraction of the many thousands of decisions it has issued.
The most famous example is Brown v. Board of Education. This 1954 decision in a case from Kansas overturned Plessy v. Ferguson, an 1896 decision which upheld segregation on passenger trains. In Brown, the Justices ruled unanimously that racial segregation in public schools--and the "separate but equal" doctrine on which it was based--violated the 14th Amendment's guarantee of equal protection.
What had changed in those 58 years to get the Court to shift? In the South, very little; racial segregation in public institutions was as entrenched in 1954 as it had been half a century earlier. But from the perspective of the nation as a whole in the postwar world, change appeared both desirable and unstoppable.
In 1948, President Harry S. Truman ordered the integration of the Army, a milestone that helped spark the civil rights movement. By the early 1950s, the U.S. was locked in an ideological struggle with the Soviet Union for the hearts and minds of the world's less developed countries, many of them populated by non-whites. Chief Justice Earl Warren--a canny politician who had served three terms as the Republican Governor of California--knew that the U.S. could hardly win such a battle while relegating blacks to second-class citizenship.
But such turnabouts, while dramatic, are by far the exception rather than the rule. Adherence to precedent gives stability and predictability to the law; as Justice John Paul Stevens once wrote, citizens should be able to have confidence that the rules they rely on "are rules of law and not merely the opinions of a small group of men who temporarily occupy high office."
BRITISH COMMON LAW
Reliance on precedent is one of the foundations of British common law, on which the American legal system is based. This means that precedents are generally followed unless and until there's a good reason to overturn them; that's why it's such big news when they are overturned.
The Warren Court didn't stop at banning school segregation. Several other Justices also had political careers before coming to the Court, and that may help explain their willingness to tackle problems in American politics and society during the 1960s.
The '60s was a decade of upheaval and far-reaching social change (see Times Past, p. 24), and many of the Warren Court's most controversial decisions reflected those shifts.
Chief Justice Warren presided over a revolution in the rights of criminal defendants, overturning several precedents in the process. In 1964, Gideon v. Wainwright gave poor defendants the right to lawyers paid for by the government. Two years later, Miranda v. Arizona established the Miranda rule--the famous "you have the right to remain silent"--forbidding prosecutors from using incriminating statements from suspects who had not been formally informed of their right to remain silent and to consult a lawyer.
In recent years, the Court has done an about-face in several areas. In 2002, in Atkins v. Virginia, it overturned a 13-year-old precedent when it ruled that the Constitution bars executing the mentally retarded. In 2005, in Roper v. Simmons, the Justices ruled against the execution of those who commit murder at the age of 16 or 17, overturning a 16-year-old precedent. In Lawrence v. Texas in 2003, the Court granted constitutional protection for the private actions of homosexual adults, overruling a 1986 decision, Bowers v. Hardwick, which had dismissed the idea that gay men and lesbians could claim constitutional protection.
The current Court, led by John G. Roberts Jr., since he became Chief Justice in 2005, is being watched closely for the balance it strikes between precedent and change.
Last year, the Roberts Court showed itself quite willing to reshape the law, overturning or sharply revising rulings in six cases. In addition, the Court has signaled an interest in rethinking the "exclusionary rule," which bans the courts from considering evidence that was improperly obtained. The Court upheld the Partial Birth Abortion Ban Act, a federal statute that outlaws a specific method of abortion. In its decision the Court referred to abortion in terms that raised the prospect that it might reconsider Roe v. Wade.
The Court has also indicated a willingness to open the door wider to expression of religion in public life--perhaps overruling an earlier decision in order to allow prayer at graduation ceremonies or prayer at school football games.
During his Senate confirmation hearing in 2005, John Roberts was asked by Senator Arlen Specter, a Pennsylvania Republican who supports abortion rights, whether he considered Roe v. Wade to be a "super-duper" precedent, on the ground that the Court has twice rejected the opportunity to overturn it.
Specter's suggestion was that Roe v. Wade was now in a special, safer category of precedent. The future Chief Justice, who knew exactly what the Senator was driving at, declined to say.
Brown v. Board of Education (1954) barred segregation in public schools.
ELIZABETH ECKFORD, one of nine black students who integrated Little Rock High School in Arkansas in 1957
PLEDGE OF ALLEGIANCE
West Virginia v. Barnette (1943) established the right of students to not recite the Pledge.
EXECUTION OF JUVENILES
Roper v. Simmons (2005) barred the execution of juveniles.
CHRISTOPHER SIMMONS, shown in 2003, was 17 when he killed a woman in 1993.
Key rulings in the 1960s established the Miranda rule and the state's duty to provide a free lawyer if necessary.
POLICE MUST inform suspects of their rights.
* AN EXTRA "E" WAS ADDED TO THE BARNETT SISTERS' NAME IN COURT DOCUMENTS, AND THE MISTAKE MADE ITS WAY INTO THE OFFICIAL TITLE OF THE CASE.
By Linda Greenhouse in Washington
Linda Greenhouse is the Supreme Court correspondent for The New York Times.
THE 2008 ELECTION & THE COURT
The outcome of the 2008 presidential election will likely have a significant impact on the Supreme Court since there are several elderly Justices who might Leave the Court in the next four years.
The President appoints Supreme Court Justices, subject to Senate approval, so whether a Democrat or a Republican is elected in November will affect whether new Justices are more liberal or more conservative.
"In every election, people say that the fate of the Court is at stake," says Benjamin Wittes of the Brookings Institution. "There's always some truth to it, and it's always a little overstated. This election is no different."
In his second term, President Bush appointed two conservatives to the Court. Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. are both young--53 and 57 respectively--and will likely serve for decades to come (see chart, right). And two of the Justices generally considered more liberal, John Paul Stevens and Ruth Bader Ginsburg, are the two oldest on the Court.
But it's important to remember that there are always surprises: Not all Justices appointed by Republican presidents turn out to be as conservative as expected and vice versa.
THE JUSTICES AGE APPOINTMENT JOHN G. ROBERTS JR., 53 2005, by President CHIEF JUSTICE George W. Bush JOHN PAUL STEVENS 87 1975, by President Gerald R. Ford ANTONIN SCALIA 72 1986, by President Ronald Reagan ANTHONY M. KENNEDY 71 1988, by President Ronald Reagan DAVID H. SOUTER 68 1990, by President George H. W. Bush CLARENCE THOMAS 59 1991, by President George H. W. Bush RUTH BADER GINSBURG 75 1993, by President Bill Clinton STEPHEN G. BREYER 69 1994, Preside Bill Clinton SAMUEL A. ALITO JR. 57 2006, by President George W. Bush
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|Publication:||New York Times Upfront|
|Date:||Mar 31, 2008|
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